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Matrimonial home is no guarantee for garnishee order in separation proceedings

The Family Court turned down a request to withdraw a garnishee order between spouses since the husband was giving the matrimonial home as a guarantee. 

Malcolm Mifsud
22 August 2014, 8:00am
This was held by Mr Justice Joseph Micallef on 6 August, 2014 in the names Mary Rose Carbonaro -v- Jesmond Carbonaro.

The latter had filed an application in court asking that the garnishee order instituted by his wife be withdrawn or else have it limited to an insurance policy they both held.

The action is based on Article 836 of the Code of Organisation and Civil Procedure, which outlines the reasons and the procedure for the court to withdraw a precautionary warrant. The court commented that the application had not explained why the husband was asking for this withdrawal. The law requires that the applicant asking for the withdrawal of a precautionary warrant is to give valid reasons why this should be done. The reasons must be based on Article 836(1) of the Code and not on generic arguments. 

From the acts of the proceedings a garnishee order was issued by the wife against her husband for €10,000, which represents the value of cars that was part of the community of acquests. The banks were notified of the warrant. The background of the case is that the parties are undergoing separation proceedings and in the letter requesting mediation, there is a request for maintenance to be established and that the psychological violence suffered by the wife will stop.

The husband objected that there was more than one car that formed part of the community of acquests and moreover the matrimonial home covers this claim and so does an insurance policy.

Mr Justice Micallef held that the reasons given by the husband to withdraw the warrant is unclear and did not refer to any other action instituted in the separation proceedings. During the proceedings the court learned that the parties did own a car which in 2013 was involved in an accident and the car was written off beyond economic repair. The insurance company passed on its value to the husband but this was deposited in his account. Therefore, the claim is with regard to the car’s compensation which is in the husband’s hands. 

Article 836(1)(c) states that the court may remove a warrant if sufficient guarantee is placed. The husband explained that the value of the matrimonial home exceeds the claim. However, the wife pointed out that the house is also hers and it has not been placed on the market. For a guarantee to be accepted, this must be in the possession of the party subject to the warrant or else given by a third party.

The person placing the guarantee must show that it exists and that this is a clear guarantee that will translate in payment if required. The husband failed to show the court that the matrimonial home is available to serve as a guarantee upon the wife’s claim and that there are no other debts which give a preference to a third party. Therefore, the court ruled that the matrimonial home is not sufficient guarantee to remove the warrant.

The other requisite that the guarantee given is deemed sufficient by the court lies with the previous requisite. Reference was made to an insurance policy, but this has to be accepted by the other party and the court cannot impose this type of guarantee on the wife. 

The court moved to turn down the application for the garnishee order to be withdrawn.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates 

" The law requires that the applicant asking for the withdrawal of a precautionary warrant is to give valid reasons why this should be done. The reasons must be based on Article 836(1) of the Code and not on generic arguments"
Malcolm Mifsud is a partner at Mifsud & Associates.
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