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EU citizens' 'right' to divorce
Ivan Camilleri Source

Evelyne Gebhardt: "There is no law which says you can be divorced only if you are living in your country".

The European Commission has proposed a law to regularise the jurisdiction of EU courts concerning which law they should apply in case of cross-border divorce. The government has called for an "opt-out" clause so that the legislation would not apply to Malta.
Ivan Camilleri spoke to Evelyne Gebhardt, a German Socialist MEP who is handling this hot dossier for the European Parliament

How do you look upon divorce?The issue has nothing to do with the introduction of divorce. This has to be clear in people's minds. I am German and for us it is normal to have divorce. However, I've been happily married for 32 years and I do not want to divorce. At the same time I recognise the fact that sometimes, unfortunately, divorce is necessary.

Do you consider divorce a fundamental human right?I think it is normal to have access to divorce. I see that in Malta you have a particular problem because people who have money can obtain a divorce while others cannot. That is a problem of equality. However, it is not our duty to change anything in Malta.

Are you saying it does not make sense for a country not to allow divorce?I would only say that every country has to decide on how it wants to live.

An MEP recently described Malta as a country living in the 16th century country. Do you agree?Absolutely not. Malta is as it is and it is up to the people to decide.

The European Commission has proposed this legislation to regulate cross-border divorce. Is there really a need for the EU to legislate in this area?There is the need to enact legislation by which courts should be able to take the necessary decisions. In the EU there are still many different laws, some liberal and some restrictive.

There are couples who want to go for divorce but do not have the possibility to do that where they reside because there is no recognition of the law where they were originally married. This is a problem and we have to give this right to these EU citizens.

How are you looking at Malta's problem?Malta already allows divorces obtained in other countries, even those between Maltese citizens. At the same time, I have to admit there is still no answer on what to do with foreign people living on the island and who want to obtain a divorce in Malta.

We respect the Maltese system and we have to find a solution which respects Maltese law. At the same time there are other member states that are not happy with the Commission's proposal for other reasons such as because in their country divorce is more liberal than the Commission's proposals.

I believe people who are living in Europe, as citizens of Europe, do have a right to the same laws they have in their country.
Malta has called for an "opt-out" clause. Is this possible?That is one of the possibilities, but there are others. At the moment I am evaluating everything. There are people from the UK who are proposing this law should also include homosexual marriages which are not recognised in all the EU.

It is not easy to find a position which satisfies all the 27 member states but we will try.
But what about the opt-out?Well, an opt-out is not justified and it has to be something of a last resort - it has to come only if there is really no possibility for a solution.

I want to find a more positive solution. Foreign couples who are living in other member states have a right to choose to divorce even if they are not living in their countries. So if there are countries who opt out of this legislation, it will mean these EU citizens would be deprived of their rights.

It's OK that there is no divorce law in Malta but then you have to find a solution for people who are not Maltese but are living on the island and for them divorce is a normality.
There is no law which says you can be divorced only if you are living in your country. It is this problem that we have to solve.

If Malta is given an opt-out, we will not have a solution for these people. If we don't find another solution then an "opt-out" becomes a possibility. But I don't want to start by considering this solution.

What, then is the right solution?I do not have it right now. I will first seek the views of the Maltese authorities and see what the real situation is. I want to know how it is possible that the courts recognise divorces obtained in a foreign court if Malta does not allow divorce.
And if this happens, why shouldn't the courts recognise a divorce obtained under a different law by a foreign couple? The issue is very complex and so is the solution.

When do you plan to propose a solution?I am currently drafting a working document which will include all the opinions. I intend to organise a public hearing and issue my first draft report in October.


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