A decision of the Civil Court (Family Section) was overturned by the Court of Appeal by the judgement Sarah Gatt v. Jean Pierre Gatt delivered on the 26th November 2020.
Through an application filed on 9th January 2019, the plaintiff requested the Civil Court (Family Section) to pronounce the dissolution of marriage and to authorize her to revert to her maiden surname, in terms of Article 66B of the Civil Code. The defendant held that there is no reasonable prospect for reconciliation since they have been de facto separated for more than four years, living totally separate and independent lives.
By a sentence delivered on the 14th October 2019, the First Hall declared that the proceedings are affected by a grave procedural defect, therefore the Court refrained from considering any other pleas raised by the applicant in relation to the merits of the case. As to the applicant’s declaration that the parties had been legally separated since 5th December 2018 by a judgement delivered by the First Hall Civil Court as differently presided, the Court held that the sentence given was appealed and is still sub-judice.
The First Hall Civil Court acknowledged that the legislator provides for instances wherein the parties can request a divorce whilst separation proceedings are pending. Reference was made to Article 66F(1) allowing the parties in a cause for separation to request, by an application, that the demand for separation be considered as a demand for the pronouncement of divorce.
The Court also made reference to Article 66F(3) providing for a situation where a demand of divorce is made after a demand for separation, in which case both demands shall be heard and decided together by the same court. This is allowed any time during the cause as long as the cause has not been adjourned for judgment.
The Court decided that in the case concerned the parties did not avail themselves of these procedures before the cause had been adjourned for judgement since the demand for divorce was made once the separation proceedings were pending before the Court of Appeal. The First Hall Civil Court held that since the parties are not legally separated and they did not avail themselves of Article 66F, they would need to abide by the requirements of Regulation 4(1) of Subsidiary Legislation 12.20. This requires the filing of an application in the Court Registry, requesting authorization to proceed with the divorce application.
The Court also referred to Article 66G(2)(a) requiring the lawyer representing the application to present a note confirming that the requirements of Article 66G(1) have been followed, which note was not presented.
On the 30th October 2019, the plaintiff filed an appeal from this decision given by the First Hall Civil Court, holding that the appeal was lodged only in relation to the assignment of debts and only concerned an issue relating to the community of acquests.
Both parties agree that the sentence delivered by the First Hall Civil Court shall be revoked since the cause of separation was res judicata in relation to that which concerns who is responsible for the separation and no appeal was lodged as to the declaration concerning the separation between the parties.
The Court of Appeal held that it is evident that the First Hall Civil Court did not evaluate the appeal application filed by the defendant in the separation cause. In fact, the Court of Appeal concluded that the part of the sentence determining the separation between the parties is res judicata. Whereas the First Hall Civil Court made reference to Articles 66F(1) and (3), the Court of Appeal held that since the demand for divorce was made after the demand for separation was pronounced and became res judicata the applicant did not need to invoke these articles.
Moreover, Regulation 4(1) of Subsidiary Legislation 12.20 was declared as inapplicable on the basis that the procedure contemplated in such regulation is meant to initiate mediation and attempts to reconcile the parties. However, as conveyed through Article 66I of the Civil Code, it is evident that the parties need to appear in front of a mediator only “where the spouses are not separated by means of a contract or a court judgement” therefore this need does not apply to the case at hand.
Having considered that the parties were separated by means of a court judgment which has become res judicata, the Court of Appeal revoked the judgment given by the First Hall (Family Section) on 14th October 2019 and referred the proceedings back to the Civil Court (Family Section) to determine the merits of the case.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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