The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case “A (wife) vs B (husband)” on February 24, 2012, held, among other things, that a distinction had to be drawn between marriage which failed owing to circumstances arising during the marriage and a marriage which failed because one of the parties intended to exclude one of the essential obligations of marriage before the marriage. The first case gave rise to separation while, in the second case, the marriage could be annulled.

The facts in this case were as follows:

The court noted that it did not appear that the parties intended to exclude one of the obligations of marriage. They in fact had children and, at the start, they were happily married

The parties married on June 29, 2000 after a courtship of a few years.

They separated after eight years in terms of a contract of personal separation in the acts of Notary Reuben Debono dated July 18, 2008.

From their marriage, they had two children.

Subsequently, the wife proceeded to file for annulment, on grounds of Article 19 (1) (a), (b), (c), (d) and (f) of the Marriage Act, Chapter 255 of the Laws of Malta.

She claimed that she married only to move out of her parents’ home where she was very unhappy at the time and wished to leave at any cost.

Allegedly, her father refused to allow her to take up residence in the premises which he constructed for her unless she first married.

To satisfy this requirement, she said that she had no other alternative but to marry the man she was dating.

As grounds for annulment, she pleaded:

Reverential fear and moral pressure: She claimed to have married under duress and that her consent was vitiated.

Mistaken identity: She raised the plea of mistaken identity.

Deceit: She also claimed that her husband had concealed a disability which seriously disturbed married life.

Serious defect of discretion of judgement on matrimonial life and on its essential rights and duties: She said this rendered it impossible to perform the essential obligations of marriage.

Positive exclusion of marriage itself or for one or more of the elements of married life or rights to the act of marriage.

In reply, the husband contested her application.

He submitted that there existed no grounds to annul their marriage.

He disputed that his wife married under duress, adding that, if there was a defect of consent, it was only imputable to her and he should not suffer judicial costs.

There was no mistaken identity nor did he lack a quality which seriously impeded married life, he argued.

He denied any deceit or that his consent was vitiated by a serious defect of discretion of judgement on matrimonial life.

He said that he always performed his matrimonial duties to the full.

On May 31, 2011, the court of first instance rejected the wife’s application to annul their marriage. The court considered all pleas raised by her.

Moral pressure: In “Marica D’Amato vs Philip D’Amato” (PA) dated January 31, 2003, it was held that it had to be shown that, before the marriage, a person was subject to grave pressure to marry.

There had to be serious threats, compelling a person to concede to marriage.

The court did not feel that the wife in this case was subject to any moral violence. The fact that she was unhappy at home did not bring about the annulment of her marriage.

In addition, if she was anxious to leave her parents’ home, she would not have waited until her premises were fully furnished.

Mistaken identity: This ground did not apply as she knew her husband before she married him.

Deceit: The woman alleged that her husband concealed a disability. It was stated that he was unable to satisfy her sexually.

The court disagreed with her. It resulted that the couple had sexual relations before their marriage and the wife did not produce evidence to show how she had been deceived.

Serious defect of discretion of judgment and positive exclusion of marriage itself: The court was not satisfied with the evidence. It did not result that their consent was defective.

The court said that the parties may have taken a wrong decision to marry but such a mistake did not render the marriage to be null and void.

Aggrieved by the decision of the first court, the wife entered an appeal, calling for its revocation.

On February 24, 2012, the Court of Appeal gave judgement by dismissing the appeal and by confirming the decision of the first court.

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

Moral violence: It had to be shown that the woman was under grave and overwhelming pressure to marry her husband.

She may have been unhappy but no one compelled her to marry, pointed out the court.

The fact that her father made it a condition that she had to be married, to live in the premises, which he constructed for her, did not mean that she was under pressure to marry the man she was courting.

She could easily have lived elsewhere. Nor was she subjected to any violence or threats to remain living at home.

Serious defect of discretion of judgement and positive exclusion of marriage itself: The court said these two grounds could not be raised together.

Reference was made to “Gales vs Galea” dated March 25, 2011.

It was contradictory to say that a person lacked the intellectual capacity to understand the essential rights and duties of marriage and, at the same time, claim he was fully aware of the consequences of marriage but positively excluded to assume these rights and duties.

The court noted that it appeared that the wife wished to raise as many grounds as possible in the hope that one ground would be accepted to annul their marriage but she failed to realise that certain grounds were contradictory.

Consent of parties: This court agreed with the court of first instance that there was nothing indicating a defect of discretion or simulation.

The wife appreciated the duties of marriage. It did not appear that she was not aware of the essential rights and duties of marriage.

There was no evidence that any of the parties had a serious defect of discretion of judgement on matrimonial life.

Reference was made to “Alessandra sive Sandra McMonagale née Mamo vs Mario Mamo” (PA) dated October 26, 2000.

Lack of reflection on married life was not “a serious defect of discretion of judgement”.

There had to be incapacity not necessarily a psychological anomaly in the medical sense or a constitutional inability to enter marriage freely.

The wife did not suffer from any such defect, maintained the court. She had considered carefully her decision to marry her husband. Nor did she exclude marriage itself.

It resulted that, for the first few years, they lived as a couple.

They had two children in the space of two years, which clearly indicated their plan to form a family.

The fact that the wife was in a hurry to marry was no grounds for annulment.

The court said that a distinction had to be drawn between marriage which failed owing to circumstances arising during the marriage and a marriage which failed, where one of the parties was already determined not to meet one of the essential obligations of marriage, before the marriage.

The first case gave rise to separation while, in the second case, the marriage could be annulled.

The court noted that it did not appear that the parties intended to exclude one of the obligations of marriage.

They in fact had children and, at the start, they were happily married.

Dr Grech Orr is a partner at Ganado & Associates.