According to a recent Malta Today report, during the past four years, no less than 3,075 people were charged with failure to pay maintenance to their spouses. And of that number, 342 were imprisoned.
I find that staggering. And no, not the refusal, but the custodial sentence, typically between one week and three months.
I never understood the ratio legis behind Article 338 (z) of the Criminal Code responsible for this draconian situation. First-time offenders are ordinarily spared the rod, or should I say, the cooler. But sometimes they aren’t.
There’s no guarantee of consistency. Anomalies and injustices abound, and you could even argue that the magistrate who ultimately orders the imprisonment is merely carrying out higher orders.
Maintenance orders are, in fact, the brain child of a completely different court and usually the result of a prima facie preliminary hearing, where all too often, one’s declared income, bank balance and financial assets are of no consequence. Sometimes, it all seems to boil down to a contest between sympathy and antipathy.
Yes, of course maintenance orders have got to be respected and enforced so far as is humanly possible and reasonable. But when a maintenance order is unrealistic and all evidence irrefutably points to a person not having the means short of taking a loan or committing theft, then an onerous maintenance decree is itself criminal long before it lands before the criminal court.
While some maintenance orders make perfectly logical sense, others have no rhyme or reason, and seem to be purely motivated by retributive instead of restorative justice. I have seen decrees where, extraordinarily, five-figure salary earners have been ordered to pay as little (or as much) as low to medium wage earners. I have even come across women, living on the breadline, who have been constrained to go half way and distribute largesse to blatantly affluent men; and other career women whose salaries remained untouched despite proof of healthy bank balances.
Contradictions abound. There is no formula, no percentage and no rule, and inconsistency would seem to be the only constant. At times, this lack of regulation is a blessing. At other times, it is cruel, farcical and utterly shambolic.
Because we are dealing with an order that can, and often does, land you in jail, you’d think that it would, at the very least, be instantly and effectively reviewable. As the system stands now, there is no immediate right of appeal from such a decision. A limited form of review is envisaged in very rare and exceptional cases, but it lands you right back in front of the same Family Court judge who slapped you with the maintenance order in the first place. Talk about an arbitrary system. Good luck with it.
While some maintenance orders make perfectly logical sense, others have no rhyme or reason
That an unrealistic decree finds its way to a criminal court is, to my mind, nothing short of criminal and unconstitutional, especially when dealing with people who genuinely don’t have the money. It’s an arm-twisting tool that sets in motion a vicious circle of criminalisation.
There’s also a huge element of buck-passing here. The Family Court responsible for making the order is not the same court that will have to execute it criminally. And what often follows is a judicial passing of the parcel and the problem, hoping perhaps that the ‘case’ will eventually go away on its own.
People cannot earn money from a prison cell, just as they don’t always hang on to their jobs while banged up. And because maintenance is most often intended for children, they are the ones drawn into a bloody battle and made to feel responsible for the tragic predicament of one of their parents. And even if they don’t react in that way, they may still experience a host of other feelings – embarrassment and even shame among their peers, and resentment of the parent who, in their mind, has contributed to the sorry state of affairs.
Separation cases generally hang on a thread at the best of times, so the last thing you want is to add a jail sentence to an already strained and sour mix. To do so would be the bridge-burner to end all bridge-burners.
Sometimes I wonder whether our courts realise just how crippling, untenable and unworkable some of their decisions really are. For a system that supposedly prides itself on seeking to safeguard the best interests of children, I find this, and many other related provisions of the law, severely wanting. Unless, of course, the provision exists solely to inflict maximum havoc and to force payment, irrespective of cost, and regardless of other door-slamming breakdowns in negotiation.
Don’t forget, we’re talking about a law that has remained essentially unchanged since its enactment in 1983, a time when such orders were of marginal social importance and separations were exceptional. Today, with half of Malta paying maintenance to the other half, these orders have become supremely relevant. People discuss their maintenance as much or more than they discuss their utility bills.
An unrealistic maintenance decree – one that can’t possibly be honoured – is not worth the paper it’s written on and is a waste of everyone’s time, not least all the other courts that are dragged into the domestic battleground. They are forced to take cognisance of, and even enforce, an order they had nothing to do with it and may disagree with.
It’s useless talking about holistic justice reform when such things are commonplace. Courts can’t be detached from reality and from each other. A maintenance order that can’t possibly be met and which is destined to be breached does more harm than good, tripling the court workload and creating havoc throughout the court system. The dominos just keep falling. And before you know it, three or four courts are dealing with one and the same maintenance order: the Family Court, the Court of Magistrates, the Court of Appeal and possibly the Civil Court;
With the Constitutional Court and the European Court waiting in the wings…
michelaspiteri@gmail.com