Married couple should pay maintenance, not the Exchequer, judges rule

The Court of Appeal altered a judgment delivered by the Family Court particularly with regard to the care and custody of a minor child and the maintenance payable to the wife and her daughter.

The court was told that in 1999 the wife, A, in her own name and on behalf of her minor daughter, filed a separation case against her husband, B.

The wife claimed that the husband was violent towards her and that the breakdown of the marriage was attributable solely to him. On his part, the husband claimed that the wife was responsible for the separation as she was abusive and not prepared to bear the responsibilities of marriage.

In January 2008 the Family Court declared the parties to be separated and ordered that the care and custody of the daughter be vested in the wife subject to rights of access on the part of the husband. The husband was also ordered to pay maintenance to his wife and daughter.

The Family Court also apportioned the assets of the community of acquests and ordered that the wife be entitled to live in the matrimonial home for one year.

Both husband and wife appealed to the Court of Appeal composed of Chief Justice Vincent De Gaetano, Mr Justice Albert Magri and Mr Justice Tonio Mallia.

On appeal, the court noted that the separation had been hotly contested and had taken many years to be decided. Many documents and witnesses had been produced and the court file was in excess of 1,500 pages.

The Court of Appeal noted that the Family Court had found that both parties were responsible for the separation but that the husband bore more responsibility due to his violent behaviour. The husband appealed from this decision and claimed that his wife's unpleasant character had led to the separation. But the Court of Appeal upheld the judgment of the first court in this regard.

The husband, the court ruled, was an only child and remained tied to his parents and did not bear his new responsibilities to his wife and daughter. He ought not to have got married unless he was ready to put his wife and children first. The wife too was selfish, and the relationship between the parties was not based on true love.

The Family Court had awarded care and custody of the minor to the wife but had provided access in favour of the father. On appeal, the wife wished for the access to be reduced while the husband expected it to be extended.

The Court of Appeal dismissed the husband's wish for joint custody as it said that this was not a practicable solution when the parents were not on speaking terms.

The court declared that there was no right of access to minors. On the other hand, there was the duty of both parents to contribute towards the child's development. For this purpose it was necessary for the child to have contact with both parents. The provision of access depended on the needs of the child and not on the desires of the parents.

The emotional stability of the child was of paramount importance and the child was to have access to both parents with the least possible disturbance. The Court of Appeal added that it condemned the wife's attitude, which had led to her denying access to the husband.

There had to be emphasis, the court said, on smoothness of access so that the child could be entitled to stability in her life and in her daily schedule. As a result, the Court of Appeal diminished the days on which the husband had access to the child but increased the hours of contact on such days.

The Family Court had ordered the husband to pay his wife Lm15 a week for a five-year period and an additional €46.60 per week for the daughter until such time as she turned 18 or started to work. The husband wanted to decrease this maintenance while the wife wished it to be increased.

The Court of Appeal declared that it could not accept the husband's argument that he pay less maintenance to his wife in order for her to receive social assistance from the government and still obtain the same amount of maintenance payable in terms of the court order. The Court of Appeal declared it found this proposal disgusting. The obligation to pay maintenance lay on the married couple and not on the Maltese taxpaying public. A married woman ought not to be a burden on the state.

On the other hand, both parties had to be responsible for maintenance. The wife was capable of work so the husband ought not to be bound to maintain her for many years. The Court of Appeal ruled that the husband was to continue to pay his wife maintenance for three more years. As soon as the daughter turned 12 and started secondary school, the wife could commence working to maintain herself.

The Court of Appeal reversed that part of the Family Court's judgment regulating the sale of the matrimonial home. The first court had ruled that the home was to be sold after one year and that the wife was entitled to live there until such date. The Court of Appeal instead ordered the wife to immediately vacate the matrimonial home and that the home be sold within three months.