Is fault in separation proceedings fair?

Is fault in separation proceedings fair?

When a marriage breaks down and re­conciliation is not possible, separation is the next step a couple usually takes. Separation can either be amicable or contentious. Is there such a thing in Malta as a no-fault separation? Or is fault always attributed? What are the advantages or disadvantages, if any, of a no-fault or fault-based separation?

In Malta, no-fault separation is found in an amicable separation in which the couple come to an arrangement themselves, which is suitable to both. Such an arrangement is either done during family mediation or between the parties themselves with the help of their respective lawyers. The benefits of having an impartial mediator in family mediation is that, due to his/her impartiality, a mediator is able to help steer the couple to a friendly agreement.

Amicable separation is a no-fault separation. In contrast, in a contentious separation, which is a separation fought out in court, one must attribute to either party the fault of the marriage breakdown.

No-fault separation means that, irrespective of who caused the marriage to break down, no fault will be attributed to anyone. The benefits of an amicable separation is that, after the parties come to an arrangement and with the help of their lawyers and a notary, they draft a separation contract that must then be reviewed by the court to see it is fair and just.

However, in a contentious separation, fault must be attributed to one of the parties or to both. But, does “fault” really matter at the end of the day? Will the party at fault be “penalised” for causing the marriage to break down? What kind of “fault” can be determined as “fault”?

Fault can be attributed to a spouse who has committed adultery, or was the perpetrator of domestic violence, or committed excesses, cruelty, threats or grievous injuries towards the other party or towards the children, such that the marriage has irretrievably broken down. However, such a claim can only be made after at least four years of married life. If a spouse abandoned the family for two years or more with no good reason that spouse would be at fault.

The consequences suffered by the party declared to be the cause of the separation are that s/he loses the right of the reserved portion if the spouses had children born out of that marriage; the right of habitation in the matrimonial home; the right to anything donated upon marriage or during the marriage or anything acquired under any other gratuitous title; and the right to one half of the acquests, which were acquired/done by one party after a date as determined by the court as the date when that spouse had given rise to the marital separation. Moreover, the spouse at fault would have to maintain the other spouse. However, these consequences are at the discretion of the court as to whether they should be applied in whole or in part or if any at all.

The court nowadays commonly holds that, whether the person who allegedly caused the marriage breakdown has a partner or not, does not count when the amount of maintenance to be given is calculated. That is, the injured party cannot ask for a higher amount of maintenance just because the other spouse has a partner. The fact that s/he has a partner and caused the marriage to break down is of relevance only when determining the fault for the separation.

In A vs B, decided on July 2, 2010, the Civil Court (Family Section) ruled that fault is attributed to both parties because both of them presented reasonable grounds of fault against each other. As regards maintenance towards the wife, the court decided that, since the wife was employed and her salary was almost the equivalent to that of her husband’s, there was no obligation that the husband should provide maintenance to the wife.

In contrast, in Muscat vs Muscat, decided by the Court of Appeal on December 1, 2009, the court ruled that the wife should be given maintenance by the husband, even though the husband opposed the giving of maintenance. The court said that, once the wife has a degree of disability, she should be given maintenance by the husband.

However, if a spouse is the sole cause of the marriage breakdown, such spouse will lose the right to maintenance as stated in Zammit pro et noe vs Zammit, decided by the Court of Appeal on January 29, 2010.

A no-fault separation signifies a less expensive and faster approach towards separation, which is much quicker than a contentious fault based separation. In contrast to fault-based separation, a no-fault separation is not based on the circumstances of what brought on the failure of the marriage but rests simply on the fact that a marriage has effectively broken down.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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