The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri in the case “A (husband) vs B (wife)” on November 30, 2012, held, among other things, that A was entitled to request a reduction of maintenance, in view of a change in his financial position.

The facts in this case were as follows.

The contract of separation did not prohibit the revision of the maintenance allowance; nor was it true that the parties excluded any revision to the maintenance allowance

The parties separated consensually by virtue of a contract of separation published by Notary Burlò on June 16, 2005. The custody of the children was vested in both parties jointly; with the daily care entrusted to B (wife) subject to A’s (husband) right of access.

Under clause 2(d) of the contract of separation, the husband accepted to pay his wife €233 every month, her water and electricity bills, Melita cable subscription, internet and telephone bills, her car insurance, the car license and all reasonable expenses for her clothes, health, education of the children. He also obliged to pay her €2,233 annually to cover the cost of an overseas holiday with their children.

The man agreed to pay a further €699 every month in advance. He agreed to purchase a health insurance for her. He took a life policy in his name for €233,000 and designated his wife as sole beneficiary.

Subsequently, the husband lamented that in the last year the total maintenance allowance to his wife amounted to €30,000. Over and above the maintenance allowance, he incurred additional costs to cover extra-curriculum activities, as well as the costs of a nanny to look after the children, when they were living with him.

It so happened that while at the time of the separation contract, the husband had a good income, his financial condition worsened.

Faced with this situation, the man proceeded by filing legal proceedings against his wife requesting the court:

• to declare that there was good reason to reduce the quantum of the maintenance allowance payable under the contract of separation, as he was no longer in a good financial condition and should not be obliged to continue to pay in view of his change of circumstances; • to revise the maintenance allowance; in view of his present income, with effect from February 6, 2008.

In reply, his wife contested her husband’s legal action against her.

Her argument was that a contract was binding upon the parties (pacta sunt servanda) and unless it was rescinded, it had to be respected irrespective of any change of circumstances of one of the parties.

A contract of separation could not be altered, she maintained, save for reasons mentioned in article 61, which provides that any agreement on the care and custody of children could be annulled by the courts. Clause 6 of the contract stipulated that:

“The parties agree that the terms and conditions of this contract shall not be varied in the event that their marriage is dissolved or annulled by a Maltese of foreign court or otherwise in any event where the spouses’ rights are varied by subsequent legislation.”

She contended that under the contract of separation, the only case when her maintenance allowance could be terminated was if she remarried or if she worked full-time or on a self-employed basis, in the period, when she had to attend to their children.

As none of the above took place, she claimed that there were no grounds to revise her maintenance allowance.

Furthermore, it was stated that the change of circumstances did not render it impossible for him to pay her maintenance.

On November 15, 2011, the first court rejected the wife’s plea that her husband could not request a variation in her maintenance allowance.

Both parties appealed from the decision of the first court.

While the wife requested its revocation, her husband said that he agreed with the decision, but appealed from its reasons.

She reiterated her pleas that a contract was binding upon the parties. She said that that her husband agreed to give her a generous allowance only because she did not take her full share of the community of acquests. If her allowance were to be reduced, she asked the court to vary the division of the community of acquests.

She maintained that the contract of separation did not permit any variation, nor was it impossible for him to perform his obligations.

The Court of Appeal considered that it had authority to revise maintenance in certain exceptional grave circumstances arising independently of the will of the parties, which rendered it impossible to pay the maintenance as agreed, re: Alfred Grech vs Pauline Grech CA on April 16, 2001. It had authority on the basis of public order and article 985 chapter 16, especially when a default in the payment of maintenance exposed a party to criminal proceedings and imprisonment.

It was not possible to agree on the impossible.

The court felt that the contract of separation did not prohibit the revision of the maintenance allowance; nor was it true that the parties excluded any revision to the maintenance allowance.

The court noted further that the man based his legal action upon clause 3 of the contract of separation. It could not be stated that he had no right to request a variation of the maintenance allowance. He claimed that he was not in a financial position to pay the maintenance as agreed, and for this reasons, asked for its reduction.

For these reasons on November 30, 2012, the Court of Appeal gave judgment by declaring that the husband was entitled to request a reduction of maintenance, in view of a change in circumstances. It dismissed the wife’s appeal and confirmed the decision of the first court. The court ordered the case to be continued.

As regards the husband’s appeal, the court said that it was not possible to appeal from the reasoning of the first court. It was only possible to appeal from the deliberative part of a decision. In this respect the man’s appeal was not legally possible. The husband suffered no prejudice nor did he have any legal interest to enter an appeal.

Dr Karl Grech Orr is a partner at Ganado & Associates.

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