Court agrees with husband’s eviction after separation

The First Hall of the Civil Court agreed that the Family Court had to order a husband out from his former matrimonial home in order to allow its sale. This was decided in Raymond Cutajar –v- Patricia Cutajar on 12 October 2015 by Mr Justice Anthony Ellul

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Malcolm Mifsud
23 October 2015, 12:14pm
In his application Raymond Cutajar explained that the Civil Court (Family Section) had delivered their separation judgement on 4 February 2012. The court had liquidated the community of acquests, but left their former matrimonial home in common but ordered its sale.

On 15 December 2013, Patricia Cutajar presented an application before the Family Court asked the court to order Raymond’s eviction. This was upheld the following month and the court marshals and police moved in to change the locks in June 2014.

As a consequence the plaintiff had to find alternative accommodation with family members. He presented an application to the same court to reverse its decision, but in July of last year the court turned down this application, leaving the eviction in place. Raymond Cutajar complained that since the separation was pronounced then at law the house was no longer the matrimonial home and therefore, the Family Court did not have competence to decide on his eviction. He then asked the court to declare the application of 5 December 2013 being presented before a court no competent to decide this issue and therefore its decrees of January, June and July 2014 as null and void.

Patricia Cutajar replied by saying that she was forced to ask the court to evict her husband because he was trying to avoid the court order to sell the property every time an agent visited the premises, even causing an incident not allowing anybody to enter the premises and therefore, making it difficult for a buyer to view this property.

Furthermore, the plaintiff had failed to file a reply to the application he is now challenging. He had all the opportunity to challenge the application requesting his eviction, but failed to do so and as a result his claims should be turned down.

Mr Justice Ellul said the defendant had filed an application in the acts of the separation case which was decided. As a result the application was part of the action to execute this separation judgement.

In a previous judgement Carmelo Gauci Bianchi –v- Emanuele Sultana decided on 10 December 1951, the Court held that a court that has decided a main issue at law and orders its execution, logically should have the power to decide on the removal of any obstacles to the execution of the judgement.

The Court further held that there is no contestation that the property was their matrimonial home in terms of Article 55A of the Civil Code, however the order to sell this particular property was now final and binding on the parties. The decree to evict the plaintiff from this property was necessary in order for the Court’s order be carried out.

The defendant described the incidents that took place, facts which were not contested. The Court commented that it was clear that the plaintiff wanted possession of the house in order to avoid its sale. This could not take place, it said, adding that the Court had the power to give those orders to be carried out.

In his note of submissions, the plaintiff argued that the Family Court had alternative remedies, for example to order that potential buyers to enter the premises. The plaintiff himself argued that the Family Court take further action even though a judgement was given. The fact that he acted in the way he did, was obvious that he had no information on a prospective sale.

The plaintiff further argued that the warrant of eviction had to be given following a specific action making specific arguments and submissions. The Court disagreed as the Family Court saw that the only way for the property to be sold was for the plaintiff to be evicted. The judgement in itself was an executive title in terms of Article 253(a) of the Code of Organisation and Civil Procedure. 

As regards the issue that the plaintiff was a co-owner of the property and had a right to use the property, the Court made reference to Article 491 of the Civil Code, which states that the property held in common cannot be used against the interest of co-owners. The Court held that this is exactly what the plaintiff was doing. He was preventing the sale of property held with his enstanged wife.

The Court then moved to turn down the plaintiff’s demands and order that he pay 95% of the court costs.

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Malcolm Mifsud is a partner at Mifsud & Associates.