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Spouses are bound at law to be faithful to each other, however, if one of the spouses is adulterous, this does not automatically mean that that spouse is responsible for the breakdown of the marriage. The Court must see all the circumstances of the case. This was held in a Family Court judgement delivered on 27 September 2022 by Mr Justice Anthony Vella.

The Husband filed an application before the Civil Court (Family Section) wherein he explained that he was married in Malta in 2014, and had no children. He blamed his wife for the breakdown of the marriage and asked the court to declare a separation and the divide the community of acquests.

The Wife rebutted the allegation by saying that it was the Husband to blame for the couple splitting up and in fact filed a counterclaim.

The Wife held that in 2019 the Husband left for Greece and never returned. The Court pointed out that the bone of contention between the parties focused on the businesses they set up during marriage. The Court made reference to a previous judgement Susan Armeni -v- Leonard Armeni decided by the Court of Appeal on 30 October 2015, that marriage is intended to develop a relationship and that marriage demands a commitment.

Article 40 of the Civil Code 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”

The Court further quoted from Jayne Margaret Chetcuti -v- Lawrence Chetcuti delivered by the Court of Appeal on 15 December 2015, in which the court held that not every defect amounts to excesses and cruelty. If these incidents are repetitive then the marriage would be difficult and unbearable. This was echoed in Maria Mifsud -v- Vincenzo Mifsud decided by the First Hall of the Civil Courts on 30 June 1961.

From the evidence produced the Court held that it was no longer possible that the Parties continue to live together, and they have been living apart for the past five years. In fact the Court applied Article 41 of the Civil Code which addresses desertion. The Parties may apply for a separation if this takes place.

The Husband claimed that the Wife was a liability to the business he ran, and she had an attitude problem with all those around her. The wife rebutted this and said she worked hard, and the real matrimonial problem was that the Husband had a drinking problem.

The Court held that from the evidence produced both were to blame for the breakdown of the marriage and it was a result of an accumulation of things.

The wife had a relationship with her former boyfriend. The Court held that adultery is not an automatic declaration of fault for the marital breakdown. In this case the relationship started after the husband left home to go, the Greece to never return.

The Court went back to analyse Article 41 and said there are two elements. The first is that the desertion must be for a period of two years or more and the second is that the desertion must happened without a valid reason. The Defendant left the matrimonial home six month before the mediation proceedings were filed. Therefore, since, two years did not elapse this ground was rejected. As a result, the responsibility laid on both the Parties equally.

As to the community of acquests, the Parties has shares in three companies. The main disagreement was on one of the company, where the Husband claimed that the Wife was a liability when she worked with the company. The Court held hat both contributed to this company. The Husband transferred a number of shares to a third party in 2017 when the Parties were still living together. However, further shares were transferred to third parties in 2020, during the separation proceedings. The Court ordered that the Wife was to receive half the value of the shares transferred.

As to the maintenance for the Parties Article 3 of the Civil Code:

“Both spouses are bound, each in proportion to his or her means and of his or her ability to work whether in the home or outside the home as the interest of the family requires, to maintain each other and to contribute towards the needs of the family”

Both Parties are capable of working and they should not look at marriage as a form of guarantee of an income or as an insurance.

The Court then moved to accept that the Parties be formally separated and split the community of acquest, but they will not receive maintenance from each other.

 Avv. Malcolm Mifsud


Mifsud and Mifsud Advocates

The article may also be accessed on Malta Today. 

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.