Proved physical and psychological violence in marriage is a cause for separation and the court has the discretion apply a number of sanctions. This was held by the Family Section of the Civil Court presided by Judge Abigail Lofaro on 7 July 2020 in a case ABC -v- DE.
The plaintiff, a 71-year-old, submitted in his application that he got married to the defendant, 20 years his junior, in April 2015. He complained that he suffered from physical and psychological violence from the defendant, so much so she was evicted from the matrimonial home, following a number of police reports. He therefore, asked the Court to declare the separation of both of them.
The Plaintiff filed an affidavit explaining that he had met the defendant in 2011, when she was on holiday in Malta and from there blossomed a relationship, where he visited her country of Slovenia a number of times. The plaintiff had no interest to marry, but the defendant insisted that they do and she put constant pressure on him. He realised that he could not get rid of her and felt afraid of her.
He described her as having an “evil streak”. He gave in the pressure and married her. He admitted that this was the worse mistake he ever made in his life. Shortly after the marriage, he found his wife with other men in a pub. She left Malta for long spells of time and explained that she attended a psychiatric clinic in Bratislava. She had told him that she would change if he passed on his paraphernal property to her son from a previous relationship. Obviously, all his assets were all paraphernal and refused to purchase anything because it would be part of the community of acquests. From December 2015 And September 2017, the defendant was aggressive and did everything to annoy him. She refused all approaches from him to act as a normal couple. There was also a violent episode when they discussed his money and property. He left to live with his sister because he was fearing for his safety.
The Court then analysed the legal points and started off with Article 40 of the Civil Code, which reads:
“40. Either of the spouses may demand separation on the grounds of excesses, cruelty, threats or grievous injury on the partof 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 on 12 May 1925, there is no need that all excesses, cruelty, threats or grievous injury have to be proved, but one may be proved for the court to order a separation. The Court quoted from numerous judgements that explained this article of law, such as Maria Mifsud -v- Vincenzo Mifsud held that excesses means that acts that could endanger the life of the other spouse. In Joanne Tabone pro et noe -v- Jesmond Tabone of 3 October 2003, held that violence will bring about separation.
The Court held that from the evidence produced the plaintiff did suffer excesses, cruelty, threats or grievous injury from the defendant.
Witnesses who know the plaintiff explained how he changed when he married the defendant and witnessed incidents between the two. They both had gone to a notary to transfer the plaintiff’s money and property to the defendant’s son and was advised not to do this.
Apart from these the plaintiff produced documentary evidence such as police reports.
As to maintenance, in terms of Articles 48 and 51 of the Civil Code, since the separation was caused because of adultery and abonnement then the consequences listed in Article 48 applies. This article reads:
48.(1) The spouse who shall have given cause to theseparation on any of the grounds referred to in articles 38 and 41,shall forfeit –
(a) the rights established in articles 631, 633, 825, 826 and827 of this Code;
(b) the things which he or she may have acquired from theother spouse by a donation in contemplation ofmarriage, or during marriage, or under any othergratuitous title;
(c) any right which he or she may have to one moiety ofthe acquests which may have been made by theindustry chiefly of the other spouse after a date to beestablished by the court as corresponding to the datewhen the spouse is to be considered as having givensufficient cause to the separation. For the purposes ofthis paragraph in order to determine whether anacquest has been made by the industry chiefly of oneparty, regard shall be had to the contributions in anyform of both spouses in accordance with article 3 ofthis Code
d) the right to compel, under any circumstances, the otherspouse to supply maintenance to him or her in virtue ofthe obligation arising from marriage.
The Court held it will apply Article 51 which allows the Court to decide on the consequences in terms of Article 48.The Court then ordered that half an account which was opened by the defendant be passed on to the plaintiff. The Court also held that the former matrimonial home be declared as the plaintiff’s paraphernal property, since it was financed by the inheritance of his parents.
Avv Malcolm Mifsud
Mifsud & Mifsud Advocates
This article is available on MaltaToday.