Separation and divorce authorised simultaneously

Either of the spouses may demand separation if, for two years or more, he or she shall have been deserted by the other, without good grounds

malcolm_mifsud
Malcolm Mifsud
10 December 2015, 7:47am
The Civil Court, Family Section ruled on a separation and divorce in one judgement. This was decided on 1 December, 2015 in AB -v- Avukat Dottor Joseph Ellis and LP Victor Bugeja.

In his application the husband held that he had got married to CDE in 2005 in the Valletta public registry. They had no children, and their marriage irretrievably broke down after the wife abandoned the matrimonial home, when she returned to Russia and the husband never heard of her again. He asked the court to declare them both separated and divorced. 

The curators held that they did not know any of the facts. 

Ms Justice Abigail Lofaro analysed the little evidence produced in this case. The husband presented an affidavit, where he explained that he met his wife at a bar in Paceville, when she was on holiday. She returned to Russia and they kept in touch. He bought her tickets to come to Malta and two month visas were given to her. They rented a flat at St Paul’s Bay.

On one occasion the defendant was given a visa for only nine weeks and from there they got married. In 2007, the plaintiff returned home from work and found that she had taken all her possessions and left Malta. This affidavit was the only evidence produced, apart from the immigration office, who confirmed that the wife did not return to Malta since 2007, unless she entered though another Schengen zone. The Court then quoted Article 41 of the Civil Code which reads:

“Either of the spouses may also demand separation if, for two years or more, he or she shall have been deserted by the other, without good grounds.”

From the affidavit presented the wife failed to return to the matrimonial home and this has not been contradicted in any form and the wife failed to produce any evidence showing that she left the matrimonial home for legitimate reasons. 

The Court then quoted Article 48 of the Civil Code:

“48. (1) The spouse who shall have given cause to the separation on any of the grounds referred to in articles 38 and 41, shall forfeit -

(a) the rights established in articles 631, 633, 825, 826 and 827 of this Code;

(b) the things which he or she may have acquired from the other spouse by a donation in contemplation of marriage, or during marriage, or under any other gratuitous title;

(c) any right which he or she may have to one moiety of the acquests which may have been made by the industry chiefly of the other spouse after a date to be established by the court as corresponding to the date when the spouse is to be considered as having given sufficient cause to the separation. For the purposes of this paragraph in order to determine whether an acquest has been made by the industry chiefly of one party, regard shall be had to the contributions in any form of both spouses in accordance with article 3 of this Code;

(d) the right to compel, under any circumstances, the other spouse to supply maintenance to him or her in virtue of the obligation arising from marriage.”

Article 51 of the same Code:

“51. Where separation is granted on any of the grounds mentioned in article 40, it may produce any of the effects mentioned in article 48, if the court, having regard to the circumstances of the case, deems it proper to apply the provisions of that article, in whole or in part.”

From the evidence produced the Court concluded that the separation was attributed to the wife’s action, by abandoning the matrimonial home.

As regards the divorce, the parties were separated de facto since April 2007. On the issue of maintenance the wife made no request for maintenance and there seems to be no chance of reconciliation. Since the wife was responsible for the separation, one of the penalties is that she foregoes maintenance. Furthermore, there was no evidence that the community of acquests possessed any assets and therefore, there was nothing to divide. 

The Court then moved to declare the pair separated and divorced.

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.