This article is part of a series of articles discussing the various aspects of separation proceedings under Maltese law. This third and final article, outlines the process of Separation before the Maltese Courts from a procedural standpoint.
Contentious Personal Separation Proceedings
When the Mediation process does not lead to the spouses concluding a separation agreement, the mediator must inform the Civil Court (Family Section) and proceed to close off the mediation. Consequently, the Court issues a decree acknowledging termination of the mediation process and authorises the parties to proceed with an action to obtain legal separation. Any party wishing to institute separation proceedings must submit a personal separation application within two months from the date of the Court decree.
Applying for Personal Separation
The demand for personal separation needs to be filed in Court by means of a sworn application prepared by the plaintiff, containing; details of the parties and facts leading up to the case, the cause of the claim for separation, and the claim itself. Attached to the application, the plaintiff must also present any relevant documents which are necessary to support the claim as well as provide a list of witnesses which the plaintiff intends to produce during the proceedings. The application is registered in the court registry and is served on the respondent, who together with the application will also receive a notice of the hearing. This means, that the respondent needs to be residing in Malta. If this is not the case, there are procedural remedies which need to be sought to ensure that the respondent is served with the application, since it is only upon service, that the Court can proceed to hear the application.
Upon date of service, the respondent has twenty (20) days to draft and file a reply. Where the respondent intends to admit to the claim wholly and unconditionally, a note to this effect can be filed in the acts of the case. Otherwise, the respondent shall file a sworn reply containing; any defences which if not raised before the contestation of the suit would be deemed as waived, a clear and correct statement of the defences on the merits of the claim, confirm on oath all the facts concerning the claim as well as deny, admit or explain the circumstances of fact laid down in the plaintiff's application and state which facts are within the respondent's own knowledge. Attached to the reply, the respondent must also provide a list of witnesses, and present any documentation necessary to substantiate any of the defences raised.
The law states that when there are grounds on which both spouses may demand separation, both parties can proceed to bring a suit for separation against each other. In practice this means that the respondent upon receiving the sworn application, apart from replying to the application may also elect to file a counterclaim. A counterclaim needs to be filed concurrently with the sworn reply and would need to be served to the plaintiff, who would also have twenty (20) days to file a sworn reply to the said counterclaim.
The Grounds for Obtaining Personal Separation in Malta
A demand for personal separation needs to be motivated. The Maltese Civil Code holds that separation may be requested on the grounds of; adultery, desertion, excesses, cruelty, threats or grievous injury on the part of one spouse against the other, or against any of their children, or on the ground that the spouses cannot reasonably be expected to live together as the marriage has irretrievably broken down.
Adultery is considered a serious accusation which can bring about serious legal consequences. Since it is very difficult to confirm, it is now established in jurisprudence that adultery can be proved by means of hints and presumptions that are serious, precise, and consistent enough to convince the Judge of the fact.1 Desertion also referred to as abandonment, constitutes a ground for separation when it creates an unjust situation which remains for a persisted period of two years or more.2
Excesses, cruelty, threats and grievous Injury are grouped together as one ground, but the Court of Appeal has held that; it is not necessary that all four instances occur, but if any one of the above grounds is committed, it is enough to render marital cohabitation impossible.3 Local jurisprudence has delved into each instance in further detail and provided a definition for each.4 Excesses are defined as acts committed on the other party, which acts need to be of such a serious nature that endanger the life of the victim. Cruelty includes acts of recurring maltreatment which although they do not endanger the life and health of the victim, it renders marital cohabitation impossible. Threats encompass verbal or written words, as well as actions that are said or done with the intent of harming the other party and rendering their life miserable and discontented. Whereas grievous injury refers to words or actions that offend the honour or modesty of the person concerned, irrespective of whether these are true or false.
The final ground is when the marriage has irretrievably broken down. This ground is self-explanatory, and most times is a consequence of the committal of the other above-mentioned grounds.
When a party manages to prove any of these grounds, this is given significant consideration by the Court when allocating fault. In fact, the Civil Code provides that the spouse who gives cause to the separation forfeits several rights, some of which being; things acquired from the other spouse by donation, the right to request and receive spousal maintenance from the other spouse, any rights arising at law as a surviving spouse upon the demise of the other spouse; such as the right to the reserved portion and the right to habitation of the matrimonial home as well as any right the spouse would have had to one half of the acquests which would have been made by the industry chiefly of the other spouse.
The Personal Separation Judgement
When pronouncing personal separation, the Court, upon the demand of either of the spouses, shall determine the fault for the breakdown of the marriage, terminate and dissolve the community of acquests (by splitting all assets held in common between the parties), determine what will become of the matrimonial home, as well as uphold the choice of any of the parties to revert to their surname at birth. The Court shall also regulate the parties' rights towards their children by; determining the person in whose custody the children are placed, fix the time, place, and manner with which the spouses shall have access to their children, along with determining the amount of maintenance due to the children according to the spouses' means, their ability to work and their needs.
Each party shall have a right to appeal from the Civil Court (Family Section)'s decision to the Court of Appeal. Once the judgement is final, it shall be operative regarding third parties from the day the judgement is registered in the Public Registry.
Footnotes
1. The Civil Court First Hall, presided by Honourable Justice Raymond Pace, in a Judgement dated 2 ta' Ottubru 2003, with reference number 1677/1995/1 held; 'Illi l-akkuza ta' adulterju hija akkuza serja hafna li maghha tista' ggib konsegwenzi serji taht il-ligi Civili Maltija. Illi fil-kawza "Rita Schembri vs Dott. Albert Grech et noe" deciza fis-16 t'April 1953, il-Qorti Civili kienet qalet illi: "Stante diffikulta' tal-prova ta' adulterju, dan jista' jigi ppruvat permezz ta' ndizji u prezunzjonijiet purche' ikunu gravi, precizi u konkordati b' mod li ma jhallu ebda dubju f' min ghandu jiggudika".
2. Ibid; 'Illi hawn issir referenza ghall-kawza fl-ismijiet "Josephine Anne Edwards vs Avukat Dr Joseph Xuereb noe" (P.A. 22 ta' Frar 1961) fejn din il-Qorti diversament presjeduta sostniet illi:- "Biex jikkostitwixxi motiv ta' separazzjoni, l-abbandun irid ikun ingust fiz-zmien tieghu kollu ta' sentejn...'
3. The Court of Appeal, in a judgement delivered on 24th September 2004, with appeal number 2343/1996/1 held; "Illi hu pacifiku 'perchè il coniuge offeso possa domandare la separazione contro il coniuge colpevole non è necessario che concorrono gli eccessi, le sevizie, le minaccie, e le ingiurie gravi, ma qualunque di tale cause da sola basta, perchè sia tale da violare profondamente i riguardi della convivenza coniugale' – Elisa Thompson vs Edward Thompson – Prim Awla tal-Qorti Civili, 12 ta' Mejju 1925
4. The definitions of excesses, cruelty, threats and grevious injury all stem from the case delivered by the Civil Court First Hall presided by Honourable Justice Raymond Pace decided on the 2nd October 2003 with court application number 1677/1995/1.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
