Article 48 of the Civil Code lists the consequences if a party to a separation action is found responsible for the break up. This was held by the Civil Court, Family Section, presided by Judge Abigail Lofaro on 2 December 2021 in AB -v- CB.
The husband filed a separation case against his wife and accused her of being guilty of adultery and cruelty. The wife failed to file a reply nor did she make any submissions.
The husband did not testify however, his psychiatrist and social workers did. The psychiatrist explained that he was diagnosed with bipolar mood disorder in 1995, and had in the past a learning disability. The plaintiff’s wife brought another man into their matrimonial home and the plaintiff was set to live in the boxroom, then in a field and then in a garage. He was clearly neglected. For his protection the psychiatrist sent him to Mount Carmel Hospital. The wife wanted to cash his cheques and take his money and the doctor has to make sure that he was protected from his wife and her lover.
The Agenzija Appogg social workers testified in these proceedings that they have been following the husband since 1995 because of financial problems the family was undergoing. He was a gambler and he had a lot of debts.
In 2005 Agenzija Appogg took half his social security income to start paying his debts. In 2007 the husband told the social workers that he was helping out his wife’s lover in a field. In 2008, he noticed that the man was in actual fact his wife’s lover and admitted to them that he was living with them for months.
He gave all his money to his wife and her lover and worked on the lover’s land. In 2009, the husband was living in his wife’s lover’s farmhouse and it was noticed that he was not eating regularly and it was the lover who was controlling the family finances. In 2010, he left from the farmhouse and went to live in a half-way house. The lover made claims that he was helping the family financially, but the doctors noticed that the wife was taking all the social benefits. He then left under their care and went to live in a garage and was working for his wife’s lover in this garage. He was sometimes paid not more than €10. The wife was removed from being his agent for social security benefits.
Other witnesses testified on the family’s debts, as from ARMS Limited, Lands Authority, Melita plc and others.
The Court quoted from Article 40 of the Civil Code which reads: “40. Either of the spouses may demand separation on thegrounds of excesses, cruelty, threats or grievous injury on the part of the other against the plaintiff, or against any of his or her children, or on the ground that the spouses cannot reasonably be expected to live together as the marriage has irretrievably brokendown.”
In Elisa Thompson -v- Edward Thompson, decided by the First Hall of the Civil Courts on 12 May 1925, there is no need to prove all excesses, cruelty, threats or grievous injury. It is sufficient to prove just one for one party to be held responsible. In Maria B -v- Vincenzo B decided by the First Hall of the Civil Court decided on 30 June 1961, held that grievous injury are left for the judge to evaluate. Excess refer to serious acts which are dangerous.
In Joanne Tabone pro et noe -v- Jesmond Tabone decided by the First Hall of Civil Code on 3 October 2003 that violence is an obvious cause for a matrimonial separation.
Adultery is regulated by Article 38 of the Civil Code, which reads: “38. Either of the spouses may demand separation on the groundof adultery on the part of the other spouse.”
In Hugh Greengrass -v- Lucia Greengrass decided by the First Hall of the Civil Courts on 2 October 2003 held that adultery is a serious cause of separation.
As to this case, the Court held that there was no doubt that the Wife was the cause of the separation. His version of the events was not contested and it was also corroborated by witnesses. The Court held that the plaintiff was a victim of the wife and her lover and their intentions was to get rid of him, while benefitting from his social security benefits. The husband suffered physical and more violence.
The Court held that Article 48 of the Civil Code applies to this case. These include the forfeiture of rights from the time when the adultery or cruelty took place and that the guilty party should pay maintenance.
The Court ordered the wife to pay €200 every 4 weeks.
The Court then moved to declare the pair separated and ordered that the lease of the matrimonial home be assigned to the husband and the wife is to pay all the pending debts, since she was responsible for the breakdown of the marriage.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article is available on MaltaToday
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
