Judge dismisses plea to end community of acquests

Mr Justice Noel Cuschieri, sitting in the Family Court, yesterday dismissed a writ filed by a man against his wife asking the court to rescind a public deed that terminated the community of acquests between them.

The court heard that in 1982, when the husband was employed in the public sector, he had been diagnosed as suffering from Wilson's Disease, an illness that affected the soft tissues of the body including the brain.

In 1984 he was boarded out from government service when he was 26 years old and had subsequently found work as an airport representative with a local company.

In 1996 the man and his wife had set up a company, and the husband had taken out bank loans to run the business. Before he had taken out these loans, the husband had been advised by a bank official to enter into a deed of separation of estates with his wife whereby the community of acquests existing between them would be terminated.

The deed was published in 1997 and amended one month later. The notary who received the deed told the court the husband had claimed that the scope of the termination of the community of acquests was his wish to take out a home loan in his own name. In this manner, he would benefit from interest rates that were lower than commercial rates.

The court pointed out that the company had not been successful and large debts had been incurred.

The husband told the court he had no assets but his wife continued to reside in the matrimonial home which had been assigned to her.

He therefore filed a writ of summons to annul the deed of separation of estates.

Mr Justice Cuschieri said the man's writ was based on two contestations, namely that he had been incapable of contracting when the deeds were concluded and that the basis of the deeds was false.

In order for a contract to be annulled on the grounds of incapacity, the court had to be satisfied that the contracting party suffered from a natural impossibility to deliver his or her consent. The incapacity was therefore to be absolute.

Whoever claimed to be incapable of contracting had to prove that at the time of the contract he was suffering from a complete mental infirmity.

This did not result in the husband's case, the court ruled. On the contrary, the motive for the separation of estates made financial sense and the husband had been aware of this issue.

The court declared that it was convinced that at the time the husband had terminated the community of acquests, he was fully aware of what he was doing.

When referring to the husband's second contestation, the court said it was not satisfied there had been a false reason for the contract.

It was clear that the parties had intended to terminate the community of acquests between them and to assign the husband's share of the assets.

No falsehood had occurred in this respect.