Cruelty in marriage has its consequences

Proven physical and psychological violence in marriage is a cause for separation and the court has the discretion to 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 a separation for both parties.

The Plaintiff filed an affidavit explaining that he had met the defendant in 2011, when she was on holiday in Malta. From there blossomed a relationship, which resulted in him visiting her native country of Slovenia a number of times.

The plaintiff had no interest in marriage, but the defendant insisted on this, and she put constant pressure on him to go ahead with it. He soon realised that he could not get rid of her, and began to fear for his safety.

He described her as having an “evil streak”. The plaintiff detailed how he gradually caved in to pressure, and agreed to mary the defendant. He describes this to be the worst mistake of 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, his assets were all paraphernal and purchasing anything was out of the question as it would be part of the community of acquests. From December 2015 And September 2017, the defendant was an aggressive, persistent annoyance to the plaintiff. She resisted any suggestion of them beginning to act as a normal couple. A violent episode also occurred, wherre money and property were discussed. The plaintiff eventually left his place of residence 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 part of the other against the plaintiff, or against any of his or her children, or on the grounds that the spouses cannot reasonably be expected to live together as the marriage has irretrievably brokendown”.

As demonstrated by Elisa Thompson -v- Edward Thompson, decided on 12 May 1925, there is no need for all excesses, cruelty, threats or grievous injury to be proven, but just one instance of the above would need to be proven for the court to issue a separation. The Court quoted from numerous judgements that explained this article of law, such as Maria Mifsud -v- Vincenzo Mifsud, which held that ‘excesses’ may refer to acts that could endanger the life of the other spouse. In Joanne Tabone pro et noe -v- Jesmond Tabone of 3 October 2003, it was held that violence will bring about separation.

The Court held that from the evidence produced, the plaintiff did suffer excesses, cruelty, threats and/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, even though he was advised not to do this.

Apart from the above, 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 came about as a result of adultery and abandonment, then the consequences listed in Article 48 applies. This article reads:

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 ofmarriage, 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 theindustry chiefly of the other spouse after a date to be established by the court as corresponding to the datewhen 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 oneparty, regard shall be had to the contributions in anyform 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.

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.