A maintenance order is still valid, although separation proceedings were not instituted within two months from the end of mediation. This was held in AB vs CD, by the First Hall of the Civil Court presided by Judge Joanne Vella Cuschieri. This partial judgement was delivered on 27 November 2025.
The case concerned CD’s (the defendant) alleged failure to pay medical and educational expenses of his two daughters following a decree of maintenance issued by the family court in October 2019. The claim totalled over €37,000.
The defendant rebutted that the sworn application was null because it was not signed by a lawyer. Furthermore, he argued that the decree of October 2019 did not hold any longer because it was not followed by a court case. The defendant contested the claims since he always contributed to the maintenance and medical and educational expenses of his daughters.
The court limited its decision to the first two pleas.
As to the first plea—the sworn application was not signed—Article 178 of the Code of Organisation and Civil Procedure (COCP) states that acts and sworn applications must be signed by a lawyer. AB’s (the plaintiff) lawyer then filed an application in terms of Article 175 of COCP to remedy this. The court analysed whether the lack of a signature rendered the sworn application null and void. It applied Article 789(1)(c) of the COCP which lists when acts are null and void. The plea of nullity may only be raised if there is formal breach of legal requirements or where the breach will prejudice the other party. The principle applied by law is that the acts must be upheld or saved as long no law is breached in the process.
The COCP states that not every violation of form, should bring the nullity of law. However, the defendant failed to bring attention to the court how this prejudiced him. The court recognised that this was a mistake. With or without the signature the defendant was notified and he also replied to the acts of the case. The Court rejected this plea.
The court then moved to analyse the second plea, which argued that the decree issued by the Family Court in 2019 was no longer applicable because mediation was not followed by a separation case. The separation case was eventually initiated in 2021 by the defendant.
In November 2019, the Family Court ordered CD to pay AB €400 a month for both his children. He was also ordered to pay half the medical and educational expenses with effect from October 2019. In December 2022 the CD was ordered to pay AB €250 a month plus medical and educational expenses.
Article 37 of the Civil Code states: “(3) The court shall summarily hear the applicant and the respondent and shall then, by decree, decide on the demand: Provided that the court may decide on the demand where the applicant or the respondent or both the applicant and the respondent fail to appear on the day of the hearing.”
According to Sub-article 5 of Article 37 of the Civil Code, the decree is not valid if an action is not instituted within two months from the date of the decree. This does not mean that an order of the court will be declared null and void. A decree issued under Article 37(2) of the Civil Court is an executive title and may be enforced like any other executive title. Furthermore, it was CD who instituted an action for separation and therefore, the spirit of the law was to avoid double actions. Therefore, the court ruled that the decree during the mediation process remains in force. Subsequently, the court rejected the second plea as well.
This article may also be accessed on MaltaToday.
