The Court ruled that once the wife contributed to the breakdown of the marriage, she lost the right to maintenance. This was held in PB v JB decided by Civil Court in its family jurisdiction, presided by Judge Abigail Lofaro on 10 January 2023.
The Wife filed a sworn application wherein she explained that she married her husband in June 1976, but the marriage became impossible because of adultery, and because the husband abandoned the matrimonial Home. The wife accused the husband of being violent towards her. She asked the Court to declare the separation of the two and that the blame be attributed to the husband. She asked for maintenance and that the community of acquests be terminated.
The husband defended himself by filing a statement of defence. He rebutted the allegations by stating that it was his wife was to blame for the breakdown of the marriage.
The Court analysed the evidence brought before it. The wife presented and affidavit where she submitted that the parties had lived together until October 2012 when the husband left the matrimonial home. She accused the husband of having a drinking problem. In the beginning of their marriage the problem was under control, however, the problem eventually became uncontrollable. He refused any help. The family was struck by tragedy as their daughter died when she was only four years old. The husband left home in 2012 and when he left there were pending bills.
The wife produced a number of witnesses most of which were with regard to the family’s financial position.
The husband also produced his evidence. He testified and told the court that he worked all his life and his wife never worked. He handed over his salary to his wife who administered the family finances. The problem was that the wife was playing tombola frequently. She was also jealous and did not allow him to speak to other people, including his own mother. He denied he had a drinking problem and neither was he violent with his wife.
The final straw was when the wife did not want the husband to see his daughter. He had to make arrangements with his sister to see his daughter. The wife locked the door and did not allow him to come in. He then had to go to live with his sister and then later with his daughter. He has an accident and fell and was taken to hospital, but then referred to the Mount Carmel Hospital because he was classified as homeless. At present he lives in a Home. He pays his wife €180 a month in maintenance. His wife lives in the matrimonial home with all his possessions. He is aware that there is a pending ARMS bill.
His sister and daughter testified and presented documents from Mount Carmel Hospital.
The Court then considered the legal points. The first is Article 40 of the Civil Code which states:
“Either of the spouses may demand separation on the grounds 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 broken down”
In Elisa Thompson -v- Edward Thompson decided on 12 May 1925, the First Hall of the Civil Court held that there is no need for the Parties to a separation to prove each and every element of Article 40. It is sufficient that one of these elements are proved.
In another judgement Maria Mifsud -v- Vincenzo Mifsud decided by the First Hall of the Civil Courts on 30 June 1961, the marriage would become unbearable because of the attitude used by one of the spouses.
Then Article 38 of the Civil Code separation may be requested if there is adultery. In Maria Dolores sive Doris Scicluna -v- Anthony Scicluna decided on 27 November 2011 held that this may be proved by indications as Long as They are serious.
The Court also took into consideration Article 41 which reads:
“Either of the spouses may also demand separation if, for two years or more, he or she shall have been deserted by the other, without good grounds.” In Andrea Avellino -v- Regina Avellino decided on 16 December 1949, the Spouse must prove that the other spouse abandoned the home voluntarily and not every distance between the spouses may be interpreted to be the abandonment of the matrimonial home.
In this particular case the Parties had 3 children, but there were problems between the two. From the evidence produced the Court held that the wife’s claims were not proved. The fact that the wife prepare a bottle of wine at table for dinner every nights does not mean that the husband was a drunk. Neither did she prove that the husband was violent in any way and justified that the husband was forced to leave home.
The Court also believed the husband’s version of events as corroborated by his sister and daughter. The Court believed that the wife had a gambling problem. The Court commented that it was problem that the family suffered from financial problems and They borrowed money to buy wine and play tombola. The court concluded that both were to blame for the breakdown of the marriage, but the wife’s character contributed to the family problems extensively.
The Court found that the wife was 2/3 responsible for the failure of the marriage and the husband was responsible for 1/3.
In terms of Article 48 of the Civil Code, the wife lost her right to maintenance. The Court then ordered that community of acquests should be liquidated and they should divide equally their joint accounts.
The Court then ruled that the Parties are separated.
Avv. Malcolm Mifsud
Partner
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