The Court of Appeal, composed of (outgoing) Chief Justice Vincent De Gaetano, Mr Justice Joseph A. Filletti and Mr Justice Geoffrey Valenzia, on September 6, 2010, in the case A (wife) vs B (husband), held, among other things, that an exception was admitted to a married woman’s duty to share in the burden of providing for the family’s upkeep, where her presence at home was needed to look after their minor child.

The facts in this case were as follows:

The parties married on September 30, 1995. They had one minor child, who was born on June 3, 1997. Wife (A) was not in gainful employment and had stopped working before their marriage.

Their marriage subsequently broke down irretrievably for a number of reasons. Marriage life was no longer possible in the circumstances.

In time both parties had become totally indifferent towards each other, losing all interest in each other and intimate relations had long ceased.

While A (wife) on the one side had befriended a third party, (adultery however had not been proven), B (husband) spent no quality time with her and his family.

Wife (A) complained that during their marriage:

• She would spend most of the day alone;

• Her husband regularly ate at his mother’s;

• In the weekend, he would go fishing all day; leave his family alone in the car and after he would take them to his parents’ home, where he would watch TV for the rest of the evening;

• He never informed her of his business and earnings;

• B (husband) remained influenced and dependent on his mother, who continued to assist him financially.

All attempts to separate on amicable terms failed. Faced with this situation “A” (wife) proceeded by filing separation proceedings against her husband on grounds of excesses, threats and grievous bodily harm against her. She also asked for the exclusive custody of their minor child. Wife (A) blamed her husband for their marital problems.

She also requested the court:

• To condemn “B” her husband to pay her a maintenance allowance weekly or monthly or by way of a lump sum to render her financially independent.

• To liquidate the community of acquests and to assign to her, her share of the assets.

• To declare that her husband forfeited all rights in terms of article 51 of the Civil Code;

• To order that she would be entitled to continue to live in the matrimonial home with their child.

In reply (husband), “B” disputed any fault, and contested in particular his wife’s right to maintenance. It was stated in his defence that it was evident from the number of mobile calls which she made to the same person, that his wife not only became aloof towards him but that she was betraying him with another man. He attributed their marriage problems squarely on his wife and partly on her insistence that their minor son share the same bed with them, even though he was 10 years old.

(Husband) “B” put forward the argument that his wife had no right to maintenance; though he agreed to provide for their minor child.

He claimed that his wife (aged 37 years) was young enough to find employment and earn her own livelihood.

He said that the court should consider his means as well as his wife’s capacity to earn a living. He maintained in addition that:

• The court should establish a date from when his income would be deemed for his exclusive benefit;

• His wife should forfeit her rights under articles 48 and 53 of the Civil Code; and

• He should be permitted to reside exclusively in their home in Siġġiewi.

On April 24, 2009, the Court of First Instance declared that their marriage had irretrievably broken down and authorised them to live apart.

Custody of their child was granted to the wife, with (B) husband having rights of access.

The court ordered the dissolution of the community of acquests and that both parties forfeited the right to inherit each other.

It ordered the sale of their matrimonial home and that all their bank deposits as well as the proceeds of the sale of their home should be shared equally.

It condemned “B” husband to pay “A” €4,759: representing her share in their car and in their house money, which B (husband) had appropriated for himself.(B) husband was ordered to pay a maintenance allowance of €400 for their child and €100 monthly for A (wife)’s own upkeep.

The fact that a woman was unemployed , noted the court, did not mean that she had no potential to find a job. It said that the role of women nowadays had now increased and that married women were obliged to carry the burden even as regards maintenance of the family. Reference was made to the court decision in L. Tabone vs J. Tabone dated October 2, 2003.

Aggrieved by the decision of the first court, (B) husband entered an appeal, calling for its variation. He reiterated on appeal:

• that his wife had no right to maintenance, especially in view of her friendship with another man;

• that the allowance which was awarded to his son should be reduced in the light of his means and that the first court failed to consider the value of his paraphernal property.

It was submitted that his wife committed a serious offence against him and instead of condemning to pay her maintenance, the court should have applied its discretion under article 52 of the Civil Code.

On September 6, 2010, the Court of Appeal gave judgment by adjusting slightly the decision of the first court. It deleted that part which condemned (B) husband to pay wife (A) €2,415 and instead declared that (B) husband was due €382 out of the proceeds of sale. The remaining part of the judgment was confirmed. The six-month period to sell the matrimonial home commenced from the date of this decision.

The following reasons were given for the court’s decision.

Maintenance to the wife: Article 3 of the Civil Code provides that: “Both spouses are bound each in proportion to his or her means and of his or her ability to work whether in the home or outside the home as the interest of the family requires to maintain each other and to contribute towards the needs of the family.”

There was no obligation to provide maintenance if such spouse was guilty of adultery, or desertion. In case where a marriage had irretrievably broken down, the court had to use its discretion according to the circumstances of the case.

The court felt that the principal cause of separation was not the wife’s betrayal but the “indifference” between them which escalated not on receipt of the high telephone bills, but when wife (A) noticed that B (husband) had emptied the money box in their home from which she would pay the daily expenses.

It noted that one exception to the principle that a married woman should work, was when her presence at home was needed to look after minor children. It considered that it would not be easy for wife (A) to find a job, after not working for a considerable length of time. Besides, there was no evidence of her skills and her ability to work.

On the other hand, the court recognised the value of her house work. It considered that she had custody of their child and in this respect, it followed that husband (B) should pay his wife maintenance. The court also took into account that (B) husband brought no proof to establish his level of income. He failed to convince the court that he was passing through financial difficulties.

Maintenance of their minor child: The court felt that (B) husband had the means to pay a maintenance allowance of €400 per month for his minor son.

Paraphernal property: After considering the payments which (B) husband received from his mother, it held that (B) husband had to receive an additional €382 from the proceeds of sale.

Dr Grech Orr is a partner at Ganado & Associates.

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