Court awards house to estranged husband to care for disabled son

The Court of Appeal yesterday varied a judgment of the Family Court after noting that the adult son of a couple undergoing separation proceedings was paralysed and ought not to be removed from his normal environment.

The Court of Appeal was composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The court heard that in 2002 the wife had commenced proceedings seeking a separation from her husband. The Family Court had concluded that the spouses were equally to blame for the separation and that the matrimonial home was to be sold within two years and the proceedings split between the parties.

The husband then appealed to the Court of Appeal. During the course of the appeal the husband requested authorisation to produce evidence that had not been filed before the court of first instance on the condition of one of the children of the marriage.

The Court of Appeal noted that the eldest child of the marriage was now a 24-year-old adult who had been involved in a traffic accident in June, 2004.

As a result of the accident, the young man was classified as suffering from C4 Tetraplegia which consisted in the complete paralysis of all four limbs with weakness of his respiratory muscles.

Foreign doctors who had examined the young man had concluded that the disability was expected to be permanent and that he would remain fully dependent on others for all his care needs and required a powered wheelchair for independent mobility.

According to the doctors, the young man had the capacity for verbal independence, and it was envisaged that his physical needs would alter during his life span.

Furthermore, developments in the treatment and management of spinal injury might become available in the future.

The court added that it had been proven that the matrimonial home had been altered to accommodate the young man's special needs. It had also been proven that there was no institution in Malta where the young man could be housed.

It was sad, said the court, that the tragedy that had befallen their son had not led to a reconciliation between the spouses. On the contrary, the permanent disability had led to the spouses moving further apart. It resulted that the husband was the son's primary carer, though the court noted that both the son and the husband had impeded the wife from making contact with the son after the accident.

In the event that the matrimonial home was sold, as ordered by the first court, then the family nucleus composed of the husband and the two children of the marriage would be further destroyed.

This case, said the court, was one of exceptional circumstances, for the needs of the eldest son were far more burdensome than was normally the case. The obligation of the parents to maintain their children normally came to an end when the children came of age.

But the law also established that this obligation persisted while the children were in need through no fault of their own.

In conclusion, the Court of Appeal ruled that, although the house belonged to both of the spouses, it was to be assigned exclusively to the husband.

This assignment was to take effect until such time as the circumstances of the eldest son remained the same. The court, however, empowered the wife to seek, at any time, a declaration that there had been a change in the circumstances. If such a change occurred, then the matrimonial home was to be sold and the proceeds split between the parties.