The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, on June 28, 2013, in the case “Husband vs wife”, held, among other things, that the date of forfeiture of the wife’s share in the community of acquests was the date when it was deemed that she gave rise to the separation.

The facts in this case were as follows.

On January 10, 2011, the Court of First Instance declared the parties to be legally separated, for reasons imputable exclusively to the wife. The Court of First Instance was convinced that the wife committed a grave offence against her husband by her act of adultery.

The Court of First Instance ordered that all assets of the parties at the Malta Stock Exchange and all bank accounts and instruments of debt, including shares in companies in the names of the parties, whether jointly or in one party’s name, be shared equally. The husband was assigned an Isuzu car, while his wife was given a Hyundai.

The first court left unprejudiced the wife’s right to request her share in one half of the value of the works, which were effected to construct and embellish their matrimonial home from the day of marriage to the date of the first court’s decision. The first court also ordered that every debt incurred after January 1, 2005, had to be borne by the party who created it.

The first court accepted the husband’s request to apply the provision of articles 48 and 51 of chapter 16. Article 48 of the Civil Code provides:

“1. The spouse who shall have given cause to the separation on any of the grounds referred to in articles 38 and 41, shall forfeit:

“(a) the rights established in articles 631, 633, 825, 826 and 827 of this Code;

“(b) the things which he or she may have acquired from the other spouse by a donation in contemplation of marriage, or during marriage, or under any other gratuitous title;

“(c) any right which he or she may have to one moiety of the acquests which may have been made by the industry chiefly of the other spouse after a date to be established by the court as corresponding to the date when the spouse is to be considered as having given sufficient cause to the separation. For the purposes of this paragraph, in order to determine whether an acquest has been made by the industry chiefly of one party, regard shall be had to the contributions in any form of both spouses in accordance with article 3 of this Code;

“(d) the right to compel, under any circumstances, the other spouse to supply maintenance to him or her in virtue of the obligation arising from marriage.

“2. The things mentioned in paragraph (b) of sub-article (1) of this article shall revert to the other spouse, and the acquests mentioned in paragraph (c) of the said sub-article shall remain entirely in favour of such spouse, saving any right which the children or other third parties may have acquired thereon prior to the registration of the judgment of separation in the Public Registry.”

The husband appealed from this decision and requested the court to award him all assets of the community of acquests by application of article 48, Civil Code. The wife, in reply asked the court to dismiss his appeal.

Community of acquests. The husband argued that, once the first court decided that his wife was guilty of adultery, it should have applied article 48 (1) (c) by awarding him all the assets of the community. It was evident, he said, that he was the only party in the marriage who worked and earned income and who contributed to the community. The husband pleaded that his wife should not be given the Hyundai and money forming part of the community of acquests.

He was also aggrieved that the first court left unprejudiced his wife’s right to request one-half of the value of improvements in the matrimonial home.

The court considered that there was no dispute that the matrimonial home was built on land which the husband acquired before the marriage. This property did not form part of the community of acquests. The house was built during their marriage. As the wife did not bring proof of the value of works, the Court of First Instance was unable to calculate her one-half share.

To ensure that there was justice, it left unprejudiced her right to claim her share. The first court felt that it could do so, even if there was no such request. As the husband was the owner of the property and his wife had abandoned the matrimonial home, the court awarded the matrimonial house to the husband.

As regards the bank accounts and assets held with the Malta Stock Exchange, the court said these should be shared equally between the parties. The first court allotted a car to each party, once it appeared that the parties had in their possession two cars.

As regards the bank accounts and assets held with the Malta Stock Exchange, the court said these should be shared equally between the parties

It was noted that the first court applied the sanctions of article 48 from the date of its decision, that is from that date when the court declared that they were separated, and declared that the wife was to blame for the separation. This meant that the wife no longer enjoyed any share of the community of acquests from the date established by the court, which was the date a party was to be held guilty for the separation. This date had to be indicated in the decision and, if the court was silent, it should be deemed to be the date when the court, in its decision, pronounced the separation and attributed fault to one party. In this case, although the first court, in its decision, did not expressly fix the date for the purposes of article 48, it indicated November 1, 2005, to be the date after which a party who incurred a debt would remain responsible for such debt.

It appeared that the first court wanted that, from such date, the wife would forfeit her share in the community of acquests.

The sanctions in article 48 were not applied limitedly to adultery. Other grave offences committed by the wife during their marriage could be considered: such as romantic e-mails and cards from other men. It resulted that this occurred several times during 2003 and even in 2004. There was sufficient evidence that these grave offences started in 2003 and the court noted that there existed good reasons why the date of forfeiture should not be the date of the decision of the first court but well before.

The Court of Appeal maintained that the Family Court should have established January 1, 2005, as the date of separation and the date of forfeiture. Everything which was acquired by the husband after this date should be assigned to him, while all acquisitions before this date as well as all expenses incurred from the community of acquests before this date should be shared equally by both parties.

The court ordered that all bank accounts and investments held at the Malta Stock Exchange and other instruments of credit should be shared equally between the parties, while those made after this date should be assigned wholly in their entirety to the party under whose name they were registered. The court noted that the Hyundai car was acquired by the parties on November 8, 1996, and it therefore belonged to both parties.

As regards the wife’s claim to recover half of the expenses which were incurred during the marriage, her claim extended only to those expenses made before January 1, 2005.

For these reasons, on June 28, 2013, the court gave judgment by accepting the husband’s appeal and by varying the decision of the Family Court. It fixed January 1, 2005, as the date of forfeiture for the purposes of article 48 (1) (c) chapter 16. The court reserved the wife’s right to recover half the value of expenses in the construction and in the embellishment of the matrimonial home up to this date.

Dr Karl Grech Orr is a partner at Ganado Advocates.