The grounds for separation

The grounds for separation

When a couple’s marriage breaks down and one of the parties or both decide to file for separation they have to delineate the reasons and cause for such marital breakdown and also who is to blame. Such reasons and causes are delineated in the Civil Code and one cannot use any other “reason” or “cause” which is not specifically listed in the Civil Code.

One of the grounds for separation is adultery. There is no time-limit imposed before one can file for separation. Therefore, if upon marriage, the husband or the wife commits adultery, then the injured party can file for separation there and then, even if such adultery was committed a few days into the marriage. Adultery is not a criminal offence, however, civilly it is a reason for separation. Some couples do manage to reconcile when adultery had taken place but, at other times, after a number of acts of forgiveness, when it would be too much for the injured party to bear, that party files for separation.

However, for adultery to be proven, solid proof must be brought forth. For example, in A vs B, decided on March 16, 1990, the First Hall of the Civil Court said the alleged kiss of the wife to X should be sustained by bringing X to give witness as well.

Another common ground for separation is when, during marriage, one of the spouses uses excesses, cruelty, threats or commits grievous injuries against the other spouse or against their own children. These can all fall under the umbrella term of domestic violence because domestic violence does not only imply physical acts, it also consists of emotional, psychological and even financial acts. The latter takes place when the working spouse gives only a menial amount of money to the stay-at-home spouse to cover the running costs of the house and all the daily expenses, thus leaving such spouse in dire needs. Threats and grievous injuries bring about not only a civil action but also a corresponding criminal action.

A blanket provision in filing for separation is when the marriage has irretrievably broken down. This means the marriage has permanently broken down and reconciliation is not possible. However, unlike adultery and excesses, cruelty, threats and grievous injuries, such recourse can only be resorted to after four years from the date of the marriage. This is so in order to safeguard and protect marriage against futile attempts to separate and to give a chance to the couple to try and reconcile if the reasons are indeed futile.

Abandonment of the matrimonial home is also a ground for separation.

However, this should be accompanied by the fact that the spouse would have abandoned the home for no good reason – that is, for frivolous reasons. If, on the other hand, a spouse leaves home due to the fact of being a victim of domestic violence, then such abandonment would not be a ground for separation because the spouse would have had a valid reason. Like irretrievable breakdown, the frivolous abandonment of the matrimonial home carries with it a time limit.

A spouse cannot file for separation unless at least two years would have passed from the date of the abandonment of the matrimonial home by the other spouse. This time limit is also imposed in an attempt to help save the marriage.

Minor incidents which may have taken place during marriage do not justify separation. For separation to be legally justified, the court in Vella vs Vella (February 28, 2003) quoted Agius vs Agius (June 13, 1967) and said the motives giving rise to separation should be “salient”. Therefore, the incidents should be of such significant importance to warrant separation.

The causes for separation should be accompanied and supported by solid evidence. In civil actions, and separation being a civil action, the level of proof required is lesser than that of a criminal action. The level of proof required in such cases is based on a balance of probabilities and not beyond any reasonable doubt.

The grounds for separation would be of significant importance when, in a contentious separation, the court would need to allocate fault. This means that whoever causes the breakdown of the marriage will be liable to lose the right to the reserved portion, the right to the use and habitation of the matrimonial home in case of succession, the right for anything given in donation, the right for maintenance and one half of the community of acquests from the date of the marital breakdown.

The injured spouse can always forgive and reconcile with the other spouse. However, if at a later stage s/he files once again for separation, s/he would be able to use the previous grounds and events to reinforce his or her claims against the other party immaterial of the fact that s/he had forgiven him or her.

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

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