Court allows divorce irrespective of claims of non-payment of maintenance

The judgement, in the case ABC -v- DEC, was handed down on 9 December, 2014. 

The husband filed an application in court that he married his wife in 1991, and was separated by means of a court judgement in April 2013. The couple have two children one 17 and another 15. The Court of Appeal judgement gave the couple the care and custody of one child each without any one having to pay maintenance. The application points out that the two had lived separately for over four years without any chance of reconciliation. The husband asked the court to declare them divorced. 

The court pointed out that if the husband leaves the matrimonial home, but keeps the keys, this does not mean that he is residing in the matrimonial home

The wife contested the request because her former husband failed to pay maintenance during the separation proceedings. She calculated that he owes her €3,824. She claimed that neither was it true that they lived separately for over four years. The husband had full access of the matrimonial home and went in and out as he pleased and his bedroom was reserved for him when required. 

The plaintiff explained to the Court, presided by Mr Justice Robert Mangion, that separation proceedings had commenced in 2000 or 2001. He claimed that no back maintenance payments are due to his former wife, because the Court of Appeal in its judgement had ordered that no maintenance should be given. The Court of Appeal reasoned that this was due to the fact that the daughter lived with the husband and the son with the wife. 

On the other hand the defendant explained that even during the separation proceedings that started in 2001, her former husband frequently went to the matrimonial home. He used to vanish for a period of time and then would reappear. She claimed that she was to be paid for maintenance until the judgement was delivered. The maintenance stopped when her daughter left home and went to live with her father. 

Mr Justice Mangion quoted Article 66B of the Civil Code which states:

Without prejudice to the following provisions of this article, divorce shall not be granted except upon a demand made jointly by the two spouses or by one of them against the other spouse, and unless the Court is satisfied that:

(a) on the date of commencement of the divorce proceedings, the spouses shall have lived apart for a period of, or periods that amount to, at least four years out of the immediately preceding five years, or at least four years have lapsed from the date of legal separation; and

(b) there is no reasonable prospect of reconciliation between the spouses; and

(c) the spouses and all of their children are receiving adequate maintenance, where this is due, according to their particular circumstances, as provided in article 57:

Provided that the spouses may, at any time, renounce their right to maintenance:

Provided further that for purposes of this paragraph, maintenance ordered by the court by a judgement of separation or agreed to between the spouses in a contract of separation, shall be deemed to be adequate maintenance:

Furthermore, the court analysed the separation judgement which ordered the care and custody of the son to the mother and the daughter to the father, without any maintenance for the children to be paid to each other. However, the defendant is claiming maintenance up to the date of the court of appeal judgement in April 2013, but the court disagreed, because from reading of the same judgment it is clear that the court intended that this arrangement should have started when the daughter moved to live with her father. 

With regard to the plea that the husband had free access to the matrimonial home during the separation proceedings, the court pointed out that if the husband leaves the matrimonial home, but keeps the keys, this does not mean that he is residing in the matrimonial home.

The Court then moved to accept the request for divorce and declared the couple to be a divorced couple.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates