An order to pay maintenance must be followed even if there is a change of circumstance and the non-payment will remain a criminal offence. This was held by the Court of Criminal Appeal, presided by Madame Justice Consuelo Scerri Herrera in a judgement Il-Pulizija -v- Mario Bartolo decided on 9 February 2021.
Bartolo was accused of not paying maintenance to his estranged wife as ordered by the Family Court. The Magistrates Court found him guilty and ordered a month’s detention.
He appealed from the judgement and argued that this name is not Marius but Mario Bartolo.
This is something that the Court of Appeal cannot correct and therefore, the proceedings should be annulled. This was the position in a judgement delivered on 28 February 1959 in Il-Pulizija -v- Robert Pace Bondin. Another ground of appeal concerned on the fact that there was doubt whether maintenance should be paid, since the separation contract between the appellant and his wife maintenance should be reduced from his salary.
Now the appellant no longer works and is a pensioner. He also argued that he is in a state of impossibility as he cannot afford to pay his wife’s maintenance anymore. He has a pension of €900 per month and has medical needs and the maintenance is €466.
The Court of Criminal Appeal noted in its judgement held that on 5 January 2021, Bartolo paid his wife slightly over €3,000, which covers the period of unpaid maintenance in the charge sheet. His wife declared that the sums is in settlement of what was owed in this particular case. The Court is aware that there are pending proceedings before the Family Court on the issue whether the maintenance should be reduced or not.
As to the ground of appeal over the appellants’ names was overcome with an amendment to the name of the case.
As to the ground of appeal that there is a doubt in favour of the appellant because it is unclear whether he should continue to pay maintenance, since he is now a pensioner, is a case of how the First Court analysed the evidence before it. In judgements such as that of Il-Pulizija -v- Joseph Zahra decided on 10 May 2002 by the Court of Criminal Appeal, the court had stated that the Court of Criminal Appeal should not disturb the First Court’s discretion of how it dealt with the evidence, but will do so if it finds that with the evidence there was it could not reach to the conclusion it did and that its examination of the evidence was unsafe and unsatisfactory.
The Court quoted from various judgements such as that of Il-Pulizja -v- Raymond Cutajar decided on 2 September 1999, which explained the order to pay maintenance must be replaced by an order that expressly ordering that order is revoked for the appellant to be able to have not committed an offence. It is enough for the prosecution to prove that the maintenance order exists and the maintenance was not paid after 15 days from that order. The Court of Criminal Appeal did not accept the defence of impossibility.
In Il-Pulizija -v- John Debono, decided on 1 June 2011, the Magistrates’ Court held that the fact that a person even though he is unemployed, does not give him the right not to pay maintenance, but it is important that he takes the necessary steps before the competent court to have that maintenance revoked or reduced.
On the other hand, the Court noted in the appeal proceedings the maintenance was paid and the personal circumstances as to why the maintenance was not paid on time.
The Court confirmed that Bartolo was guilty of the offence, but removed the detention order and merely fined him €58.
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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