Professional Certificate of

competence in Gibraltar law

Family law

Christopher M Pitto

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Learning outcomes
At the end of the session, students should be able to:
 
 demonstrate understanding and be able to elucidate differences in
the application of Family Law in Gibraltar and England and in
particular in relation to the Matrimonial Causes Act;
 
 apply knowledge of the Family Proceedings (Matrimonial Causes)
Rules 2010 and an understanding of the basis of their application
in Gibraltar.
 An introduction to family law
• Part 1
• Main sources of family legislation (E&W, Gibraltar, EU)
• Comparison of legislation in E&W and Gibraltar
• Jurisdiction in proceedings for Divorce, Nullity & Judicial Separation
• Council Regulation (EC) 2201/2003 Brussels II and matters of Habitual
Residence & Domicile
• Divorce proceedings
• Nullity proceedings
• Judicial separation proceedings
 An introduction to family law
• Part 2
• Application of the Family Proceedings (Matrimonial Causes)
Rules 2010
• Finances on family breakdown
• Children
 Main sources of Legislation
(England & Wales)
Primary Legislation Subsidiary Legislation

• Matrimonial Causes Act 1973 Family Procedure Rules 2010

Married Women’s Property Act 1882

Children Act 1989
Family Law Act 1996
Inheritance (Provision for Family
and Dependants) Act 1975
Civil Partnership Act 2004 List goes on…
 MAIN SOURCES OF LEGISLATION
(GIBRALTAR)
Primary Legislation Subsidiary Legislation
Matrimonial Causes Act 1962 Family Proceedings (Matrimonial
Causes) Rules 2010
(English Source MCA 1973) (English Source FPR 2010)
Married Women & Civil Partners Act 1962
(English Source: MWPA 1882) Civil Partnership Rules 2014
Maintenance Act 1961
(English Source: Domestic Proceedings &
Magistrates’ Court Act 1978)
Children Act 2009
(English Source: CA 1989)
Inheritance (Provision for Family
and Dependants) Act 1977
(English Source: I(PFD)A 1975

Civil Partnership Act 2014

(English Source: CPA 2004)

gibraltarlaws.gov.gi
 MCA 1973 (E&W) & MCA 1962 (GIB)
COMPARISON
MCA MCA MCA MCA
1973 1962 1973 1962
Divorce on breakdown of 1 16 Orders for sale of Property 24A 36
marriage

Nullity 11 24 Matters to which the court 25 37

is to have regard in
deciding how to exercise
powers
Judicial Separation 17 30 Commencement of 26 39
proceedings for ancillary
relief
Financial provision and 21 32 Financial provision in case 27 40
property adjustment orders of neglect to maintain

Maintenance pending suit 22 33 Duration of continuing 28 41

(MPS) financial provision orders

Financial provision orders in 23 34 Variation, discharge & 31 43A

divorce proceedings enforcement of orders

Property adjustment orders in 24 35 Pension Sharing Orders 24B 46A

divorce proceedings
 Main sources of
EU Secondary legislation
(1) Council Regulation (EC) No 1347/2000

(2) Council Regulation (EC) No 2201/2003 (Brussels II)

(3) Council Regulation (EC) No 44/2001 (Brussels I)

• (4) Council Regulation No. 4/2009 (Maintenance

Regulation)

http://eur-lex.europa.eu
 JURISDICTION in proceedings for divorce, nullity &
judicial separation
• Council Regulation (EC) No 2201/2003 (Brussels II)
•BII Lists the circumstances under which the Court will have jurisdiction
to entertain proceedings in matters relating to divorce, legal separation
or marriage annulment
•(Note: It has direct effect in all Member States of the EU except
Denmark. The EU Referendum result will have no impact on the
operation of BII until the UK formally leaves the EU.)

• Section 4 MCA 1962 – Jurisdiction Divorce & Jud Sep

• The Court only has jurisdiction in respect of proceedings for divorce
and judicial separation if:
•  (i)     it can be established under Brussels II; or
• (ii)     where no court of a member state has jurisdiction under
BII and either of the parties is domiciled in Gibraltar on the date when
proceedings are begun.
 JURISDICTION in proceedings for divorce, nullity &
judicial separation

•Council Regulation (EC) No 2201/2003 (Brussels II)

• Article 3(1)(a) Article 3

General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall
lie with the courts of the Member State
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year
immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months
immediately before the application was made and is either a national of the Member
State in question or, in the case of the United Kingdom and Ireland, has his or her
"domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of
the "domicile" of both spouses.
 JURISDICTION in proceedings for divorce, nullity &
judicial separation
Definitions:
Habitual residence:

• is interpreted differently for the purposes of divorce etc (applying centre of

interests test) and in the context of parental responsibility (applying a degree
of integration test)

Habitual residence in the context of divorce:

• First question to ask is ‘where is the person living’ i.e. where has he voluntarily
settled?

• Establishing the ‘centre of interests’ of a person’s life.

• Can only be habitually resident in one place at any given time

• Question of fact to be decided by individual circumstances of each case

Notable Case Law

V v V [2011] EWHC 1190 (Fam) ; Z v Z (No2) [2011] EWHC 2878 (Fam); Marinos v
Marinos [2007] EWHC 2047 (Fam)
 jurisdiction in proceedings for divorce, nullity & judicial
separation
• Definitions cont:
• Domicile:
• Much more universal concept and has no simple definition
• Everyone has a domicile and can only have one operative domicile at
any one time.
• However, a person’s domicile may change as his circumstances change
throughout his life.
• A person may acquire, and lose, any of three types of domicile:
(1)Domicile of Origin (acquired at birth)
(2)Domicile of Choice (acquired through individuals residence coupled
with intention to remain there permanently or indefinitely e.g. by the
purchase of a home or by the length of time spent in that country.)
(3)Domicile of Dependence
 JURISDICTION in child proceedings

• Council Regulation (EC) No 2201/2003 (Brussels II)

• Section 3 Children Act 1989

• Section 3(3) CA 1989

 PRACTICE & PROCEDURE

•Gibraltar law > law of England & Wales

• Section 9 MCA 1962

• Where no special provision is contained in the Act or Rules, the

court exercises its jurisdiction as per the law in force in England &
Wales
 DIVORCE, nullity & judicial separation proceedings

Divorce
• Section 18 MCA 1962 – 3 year rule
•Parties must have been married for over three years before
they can present a petition for divorce.
•Permission can be sought to to do within the first three years.

•Section 3 MCA 1973 (E&W) – 1 year rule

•Parties can present a petition for divorce after only one year
of marriage
•
•
 DIVORCE PROCEEDINGS: five facts

• Section 16(1) MCA 1962 – Ground for divorce

• The only ground for divorce is that the marriage has irretrievably
broken down.
• Section 16(2) (a) to (e) – Facts
• The court cannot declare a marriage has broken down irretrievably
unless the party petitioning for divorce satisfies the court of one or
more of five facts:-
(a)adultery, rape, sodomy, bestiality or is homosexual, and Petitioner
finds it intolerable to live with the Respondent
(b)Unreasonable behaviour
(c)Desertion for period of 2 years
(d)Separation for a period of 2 years with Respondent’s consent
(e)Separation for a period of 3 years.
 DIVORCE PROCEEDINGS: Adultery
• Section 16(2) (a) - adultery
• There are two elements to this fact, which must both be proved to the court:
• (a) adultery; and
• (b) intolerability.
• What constitutes adultery?
• Proving adultery:
• e.g. Confession statements
• Acknowledgement of Service form
•Intolerability – Subjective test
•element rarely causes any problem. Firstly, the petitioner does not have to show that it
was in consequence of the adultery that he/she found it intolerable to live with the
respondent. They could say, for example that they found it intolerable to live with the R
because of the R treatment of the children, or because of some behaviour of the R
other than the adultery.
•Secondly, the test of intolerability is subjective. The petitioner has merely to convince
the court that he finds it intolerable to live with the respondent.
 DIVORCE PROCEEDINGS: Adultery

• Section 17 (1) – supplemental provisions

•The petitioner is not entitled to rely on adultery committed by the
respondent if the parties cohabit for a period, or periods together,
exceeding six months after the petitioner has discovered the adultery.
• The time begins to run when the petitioner discovers the adultery.
• It is not relevant how long ago the adultery was actually committed.
The six months can be made up of a number of periods of
cohabitation, they need not constitute a continuous period.
• If the respondent has committed adultery on several occasions, time
will not begin to run until after the petitioner learns of the last act of
adultery.
•Section 10 (1) MCA 1962 necessary to name the Co – Respondent?
• It is necessary to name the person with whom the Petitioner alleges
the other spouse committed adultery unless excused by the court on
special grounds from doing so.
 DIVORCE PROCEEDINGS: BEHAVIOUR

• Section 16(2) (b) – unreasonable behaviour

•The Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent

•Unreasonable behaviour? – objective test

•N.B Section 16 (3) MCA 1962

• Conduct?
•Type of conduct that can be included in petition will always depend on
the particular circumstances of the case
 DIVORCE PROCEEDINGS: BEHAVIOUR

•Section 17 (3) – supplemental provisions – N.B Bar to Petition

•If the parties have lived together for a period of 6 months after the date of the
occurrence of the final incident of unreasonable behaviour relied on by P, then that
fact will be disregarded in determining the petition
 DIVORCE PROCEEDINGS: Separation 2 years with
consent and 3 years without consent

• Section 16(2) (d) & (e)

• Section 17 (6) – Definition of ‘Living Apart’

•Section 17A – Refusal of Decree on grounds of Grave

hardship to Respondent
NOTABLE CASE
Also see WP v CP 2017 GLR – Mr Justice Butler has given he views in this respects
and is notable for these purposes
 Nullity proceedings
Nullity
• Section 4(2) MCA 1962 – jurisdiction
• The court only has jurisdiction in respect of nullity proceedings if
(1) It can be established under BII; or
(2) No court of a member state has jurisdiction and one of the parties
is either domiciled in Gibraltar on the date when proceedings are
begun; or if either of the parties died before that date and was
domiciled in Gibraltar at the date of death or had been habitually
resident in Gibraltar throughout one year ending with the date of
death.
•What is the effect of a nullity decree?
•A decree of nullity may declare that a marriage is either void from the
outset, in which case it is treated as never having existed at all, or
voidable, in which case it will be treated as being valid and subsisting
until the decree is obtained.
 Nullity proceedings
Section 25 MCA 1962 - Void marriages
• A marriage will be void on any of the following grounds:
(a) Not a valid marriage under provisions of the Marriage Act
(b) That at the time of the marriage either party was already lawfully
married
(c) That the parties are not respectively male and female
(d) In the case of a polygamous marriage entered into outside of
Gibraltar, that either party was at the time of the marriage
domiciled in Gibraltar.

• Effect of a marriage which is declared void

•If a marriage is void, it never existed. Therefore, a decree is not needed
to end it. However, since a decree is needed if ancillary financial orders
are required, a decree is usually obtained.
 Nullity proceedings
• Section 25A MCA 1962 - Voidable marriages
• A marriage will be voidable in situations which include the following:
(a) non-consummation, either due to incapacity of one party
(b) non-consummation owing to the wilful refusal of the R to consummate
it
(c) lack of consent
• (d) Mental disorder making them unfit
• (e) at the time of the marriage one party was suffering from a venereal
disease
• (f) At the time of the marriage the R was pregnant by some other person.
 Nullity proceedings
•Section 25B MCA 1962 – Bars to Relief where marriage
voidable

•Section 25D MCA 1962 - Effect of a marriage which is declared

voidable
 Judicial separation proceedings
• Judicial Separation
• Section 30 MCA 1962
• An alternative to a decree of divorce is a decree of judicial separation
(or separation order for civil partners see Section 35 CPA 2014).
• It does not dissolve the marriage but can be used, for example, if
religious beliefs forbid divorce
•Grounds for Judicial Separation?
• The grounds on which a decree of judicial separation can be obtained
are the same as the facts that need to be proved to obtain a divorce
• When a decree of judicial separation has been obtained, the parties
are still married as the
• decree does not dissolve the marriage but only releases the parties
from the duty to live together.
 Part 2 - Family rules
• Family Proceedings (Matrimonial Causes) Rules 2010
• The Family Proceedings (Matrimonial Causes) Rules 2010 in Gibraltar (“the Rules’) is
subsidiary legislation made under section 61 of the the Matrimonial Causes Act .
• For the purpose of carrying out the purposes and provisions of the MCA 1962
• Like the Family Procedure Rules 2010 (E&W) it deals with the procedure for, inter
alia, beginning divorce, nullity and judicial separation proceedings as well as
proceedings for financial relief etc
• Includes 23 standard forms for this purpose
• Where there is no prescribed form, filing an originating application/summons at the
Court Registry will suffice.

•N.B Rule 4 – Overriding objective of the Rules

• Ensure cases dealt with expeditiously and fairly
• Ensure parties are on equal footing
• Deal with cases in a way that is proportionate to, inter alia, the amount of money
involved, the the importance of the case, the complexity of the issues etc.
 Part 2 - Family rules
•Rule 7 – commencement of proceedings
• every matrimonial cause begins with a petition being issued.

•Rule 8 – Content of Petition

•Rule 13 – Service of Petition

• A copy of every petition and accompanying documents must be served
personally or by post on the Respondent and any co respondent
• Can apply to substitute mode of service e.g. by advertisement (See also Rule
3 Supreme Court Rules, Rules on Service)
• Can apply for leave from the court to dispense with service altogether if
“necessary and expedient to do so”

•
 Part 2 - Family rules
•Rule 16 – Notice intention to defend
•completing the M3 Acknowledgement of Service Form) – 8 days after service
of Petition
•Filing an Answer – 14 days thereafter
•Rule 17 – filing supplemental or amended petitions
•Can be done without leave any time before an answer is filed but thereafter
only with leave.
•Rule 20 – Pleadings out of time
•Require permission to do file if the Registrar’s certificate has already been
issued under Rule 29
•Rule 22 – Filing of Reply
•Petitioner can file a Reply 14 days after receipt of an Answer.
•Rule 24 – Preliminary Hearing

•
 Part 2 – financial provision on family
breakdown
• Powers of the Court -  Orders that can be made upon Decree Nisi

•Section 34 MCA 1962

• Periodical payments order in favour of a party to the marriage
• Periodical payments orders for the benefit of children (including school fees orders) income orders
• Secured provision orders

• Lump sum orders

• Transfer of property orders  
• Orders for sale   Capital Orders
• Settlement of property  
• Variation of settlement orders  

•N.B where the order is made in a suit for nullity or divorce, neither the order itself nor any
settlement made under it may take effect unless and until the decree of divorce or nullity is made
absolute
 Part 2 – financial provision on family
breakdown
• Checklist under the MCA 1962 / MCA 1973  
First consideration of the Court – is always to the Welfare of any children
under the age of 18.
•Section 37 Factors – sets out the factors the Court must consider:-
(a)    the income, earning capacity, property and other financial resources
(b)   the financial needs, obligations and responsibilities which each of the
parties to the marriage has or is likely to have in the foreseeable future;
(c)   standard of living
(d)   ages of parties and duration of marriage
(e)   physical or mental disability
(f)  contributions made to welfare of family
(g)   Conduct of the parties
(h)   value of any benefit which, by reason of the dissolution or annulment
of the marriage, that party will lose the chance of acquiring (e.g. pensions)
 Part 2 – financial provision on family
breakdown
• Clean Break
• Meaning of Clean break

• Section 38 MCA 1962

• N.B It will never be appropriate to have a clean break between a parent and child, as a
party can never sever his responsibility towards a child of the family. It is possible,
however, to have a clean break between the parties even where there are children
involved.
 Part 2 – financial provision on family
breakdown
•White v White principles
•Over the last two decades there has been something of a re-evaluation of
the approach taken by the courts when exercising their powers under s 25.
That process began in the landmark case of White v White [2000] 2 FLR
981.
•Until that point, in very broad terms, the courts’ approach had been that
on marriage breakdown the entitlement of the financially weaker party
(usually the wife) was to have her reasonable needs or requirements met,
and nothing further.
•That approach was abandoned in White , where the House of Lords said
that the courts should not focus exclusively on one factor in this way. Lord
Nichols of Birkenhead stated, ‘the objective must be to achieve a fair
outcome’
 Part 2 – financial provision on family
breakdown
•White v White principles

(1) No bias in favour of the breadwinner or discrimination against homemaker

(2) Judge exercising his discretion should check any tentative view against the Yardstick
of equality. A judge should be able to justify why they have decided to depart from
equality

LOCAL NOTABLE CASE

•The leading reported case in Gibraltar which applies White is Caruana v Caruana
 Part 2 – financial provision on family
breakdown
Miller / Mcfarlane - Needs, compensation and sharing

•The House of Lords' decision in Miller/McFarlane [2006] UKHL 24 expanded on this

approach i.e. the concept of fairness by introducing the principles of needs,
compensation and sharing.
•Whilst need is clearly a factor included in the statutory exercise, fairness and
compensation go beyond the statutory principles.
•It was recognised that in many cases of necessity, achieving fairness did not go beyond
the stage of dividing the assets so as to try to meet the parties’ housing and financial
needs, and that often those assets were insufficient to provide adequately for the needs
of two homes.
•However, in appropriate cases fairness demanded that the court should exercise its
discretion so as to compensate one party and redress the economic disparity between
the parties arising from the way in which they had conducted their marriage.
•Lord Nichols said that ‘when their partnership ends each is entitled to receive an equal
share of the assets of the partnership unless there is a good reason to the contrary’.  
 Part 2 – financial provision on family
breakdown
BIG MONEY CASES V SMALL MONEY CASES

• N.B. White and Miller / McFarlane were ‘big money’ cases where
resources exceeded the parties’ needs.
•Whilst the principles expressed in these cases are of universal application,
the reality in many cases will be that the only real relevant factor will be
that of needs (especially in limited means cases).
•Most of the resources will be required to meet the parties’ basic needs
(e.g, to house the children and the spouse primarily caring for them) and
this will provide good reason to depart from equality.
• Charman [2007] EWCA Civ 1791

• B v B [2008] 2 FLR 1627

 Part 2 – financial provision on family
breakdown
• Application of principles in low income cases?
• Cordle v Cordle 2001 EWCA Civ 1791 . In dealing with lower income cases, Thorpe LJ produced the
following useful comments and guidelines:
• (a)     there is no rule in White v White that district judges must produce equality of outcome unless
there are good reasons to justify departure;
• (b)     the cross check of equality is intended to be a safeguard against discrimination;
• (c)     White v White decides that it is the first duty of the court to apply the s 25 criteria in search of
the overarching objective of fairness;
• (d)     in search of the overarching objective, in a typical ancillary relief case, the district judge will
always look first to the housing needs of the parties;
• (e)     in the ordinary case, the court's first concern will be to provide a home for the primary carer
and the children. In many cases however, the satisfaction of that need may absorb all that is
immediately available;
• (f)     where there is sufficient to go beyond the primary carer's housing need, the court's concern
will be to provide the means for the absent parent to re-house;
• (g)     another factor that should be considered is buttressing the ability of one or other of the
parties to work. After many years of marriage, one or other of the parties will need some capital
provision to enable him or her to get back into the labour market;
• (h)     if there is cash beyond that, then the judge has to look to what in his estimate is the fair result;
• (i)     the only universal role is to apply the s 25(1) and (2) criteria (i.e. s.37 Gib Law) and to arrive at
a fair result that avoids discrimination.
 Part 2 – financial agreements
•Part VIA of the MCA 1962 Section 31 (inserted by the Matrimonial Causes
(Amendment) Act 2009

• Financial agreements before marriage – Pre nuptial

• Financial agreement during marriage – Post nuptial (most common)

•N.B the parties cannot “contract out” of or oust the court’s jurisdiction to
make financial relief orders in divorce proceedings. However the court will
consider the existence and content of the agreement as a circumstance of
the case.

•Radmacher v Granatino (E&W)

 Children – brief overview of children
act 2009
•What is the legal position in relation to children following the breakdown of a
relationship?

• Section 10, 11, 12, 13 CA 2009 - Parental responsibility

•Do both parents have automatic parental responsibility?

Children – brief overview of children act
2009
What are the types of orders the Court can make in private
proceedings?

• Section 25 orders
• Residence
• Contact
• Prohibitive steps orders
• Specific issue orders- Name Change , Passport Issues

N.B note the introduction of Child Arrangement Orders in E&W.

This has yet to be implemented in Gibraltar.
FUNDING VIA LEGAL ASSISTANCE

Pursuant to the Legal Aid And Assistance Act and the Legal Assistance Rules individuals in certain
circumstances can have access to free legal representation. Recently The Government have amended
this so that the scope of the fund reaches a wider sector of society . Previously only individuals who
did not have an income or an income of £5,000 per annum where allowed to apply. Now the rules
allow for individuals to apply if they earn less 50% of the GDP per capita in Gibraltar. This is presently
in the region of £14,000 per annum , net of any rental payments.
THE END