The First Hall of the Civil Court presided over by Justice Lawrence Mintoff, in the case Doerthe Stephanie Rieks v Peter Rieks, concluded that one spouse can bring an action against the other spouse, claiming the reimbursement of a sum of money which was taken from his or her paraphernal property.
On December 17, 2004, Doerthe Stephanie Rieks and Peter Rieks, both of German nationality, married in Germany. They lived together in Malta until March 2012, when, upon the request of the husband, they started living apart.
In May 2011, upon a suggestion made by the man, the wife entered into a joint venture with her husband with the aim of buying immovable property in Malta and provided him with a sum of €70,000 which she had inherited.
The man paid this sum of money to the prospective sellers. However, the sale did not take place. In fact, a seperate action was instituted against the prospective sellers for the reimbursement of the sum paid.
In view of the fact that the sale did not take place, the woman asked her husband to reimburse her the €70,000. He accepted to pay this amount back to her and had in fact already paid a substantial amount of the global sum.
He had reimbursed her with €47,200 which left a balance of €22,800 still to be paid at the rate of €900 per month. In view of this, the woman requested the court to declare her to be the man’s creditor for the total sum of €22,800 and that he had not honoured the payment of €11,700 owed by him to her for the period between March 2014 and March 2015.
The husband, however, argued that the action instituted by his wife was an action between two spouses and the action per se was, therefore, unsustainable since there existed between the parties to the action the community of acquests as provided for under Article 1316(2) et seq of Chapter 16 of the Laws of Malta. The man argued that, apart from actions for separation, a married couple cannot bring actions against each other, especially for one to be declared a creditor of the other.
The court observed that the facts of the case were uncontested. The court further observed that the husband, in his note of submissions, stated that the liquidation of the community of acquests and the assignment of debts between a married couple falls under the competence of the Civil Court, Family Section. The court emphasised that such pleas cannot be raised at any point during the hearing of the case at the pleasure of the defendant and that pleas should be formally raised in accordance with procedural law.
The court further stated that, for it to allow such a plea to be raised, it had to take into consideration two fundamental principles, audi alteram partem and equality of arms, meaning therefore, that it had to give the plaintiff the opportunity to rebut.
On this point of procedural law, the court concluded that the plea of incompetence of the court could not succeed because the husband’s plea was not that there was another competent court but rather that the First Hall of the Civil Court was competent to hear the merits of the action but in a different section, that being the Family section.
The court concluded that the action was instituted before the proper court, and indeed the proper section of that court.
The court argued that the community of acquests should not have featured at all in this matter
Justice Mintoff further observed that the action at hand was an action instituted by one spouse against another spouse for the reimbursement of a sum of money belonging to the paraphernal property of the woman.
The court disagreed with the defendant’s plea that spouses cannot bring actions against each other, other than an action for separation. The court explained that, for example, spouses can bring an action against each other for the payment of maintenance.
The court further observed that Article 1331 of the Civil Code is relevant to the action in question because it refers to the taking of money or other objects from the paraphernal property of either one of the spouses for the benefit of the community of acquests. Quoting Article 1331, the court observed that “each one of the spouses has a right to be reimbursed with any sum of money or the value of any thing which has been taken from his or her paraphernal property where such money or thing was spent or consumed in connection with a debt or an investment of the community of acquests.”
Moreover, “these reimbursements are to be made at the termination of the community of acquests, provided that the Court may allow that any such reimbursements take place at an earlier date when the interests of the family so require or permit.”
The court, therefore, concluded that, undoubtedly, Maltese law permits one spouse to institute an action against the other spouse requesting the reimbursement of a sum of money transferred from the paraphernal assets to the community of acquests, even if this is done before the dissolution of the community of acquests.
The court stated that what remained to be determined was the issue as to whether the money transferred by the woman to her husband formed part of the community of acquests or not. For this purpose, the court quoted article 1320 of the Civil Code stating that the following forms part of the community of acquests:
(a)all that is acquired by each of the spouses by the exercise of his or her work or industry;
(b)the fruits of the paraphernal property of each of the spouses;
(c)the fruits of property of the children;
(d)any property acquired with money or other things derived from the acquests;
(e) any property acquired with money or other things which either of the spouses possess before the marriage, or which, after the celebration of the marriage, have come to him or her under any donation, succession, or other title, even though such property may have been so acquired in the name of such spouse, saving the right of such spouse to deduct the sum disbursed for the acquisition of such property; and
(f) fortuitous winnings.
The court further stated that, according to Article 1334 (1) of the Civil Code, “where the community of acquests....operates between the spouses, all property which is not included in paragraphs (a) to (f) of article 1320 or is not dotal is paraphernal”, meaning therefore that anything not mentioned in Article 1320 is paraphernal property.
The court concluded that the sum of money that the wife provided for the purposes of the joint venture with her husband to buy immovable property did not fall under paragraphs (a) to (f) of article 1320, and was, therefore, paraphernal property in accordance with article 1334 (1). The court stated that the man was simply the depositary of the sum of money.
However, the court further stated that this was rendered irrelevant when the defendant recognised the debt owed to his wife and entered into an obligation with her to pay the sum in question. The court argued that the community of acquests should not have featured at all in this matter.
The sum the woman was requesting was a sum belonging to her as part of her paraphernal property and, therefore, the institution of the action against her husband for the payment of such debt was valid.
The court, therefore, rejected the first plea of the defendant and ordered to continuation of the court proceedings.
Rachel Genovese is a trainee advocate at Ganado Advocates.