Adultery makes separation penalties mandatory

The Court of Appeal (Superior Jurisdiction) held on 16 March 2026 that the penalties in article 48 of the Civil Code must be applied to a spouse found at fault for adultery, even where the other spouse shares the blame. Chief Justice Mark Chetcuti, Mr Justice Anthony Ellul and Madam Justice Simone Grech allowed a husband's appeal in part against a separation judgment of the Civil Court (Family Section) of 3 December 2024. The court shared out the fault, cut the maintenance order and required a valuation before the matrimonial home passes to the wife.

The facts

In Z1 vs Z2, the husband sued for personal separation in 2013 and the wife counterclaimed. The first court found the husband solely at fault, for excesses and adultery, and applied article 48 against him. It ordered him to pay maintenance for the younger daughter, now an adult student, and to repay the value of gifts of jewellery. It also assigned the matrimonial home, which the couple bought in equal shares before the marriage, to the wife.

A legal referee, a lawyer appointed by the court to report on the evidence, had found both spouses at fault. The referee put three-quarters of the blame on the husband and one-quarter on the wife. The first court did not follow that report. The husband appealed on six grounds.

What the court held

On fault, the court found that both spouses had caused each other harm through their words and conduct. It held them equally responsible for the breakdown through excesses under article 40, a term covering serious physical or psychological mistreatment. It also found the husband at fault for adultery under article 38, and so set his share of the fault at two-thirds and the wife's at one-third.

On penalties, the husband argued that article 48 should not apply once the wife shared the blame. The court rejected that. It held that where fault rests on adultery under article 38 or desertion under article 41, "l-applikazzjoni tas-sanzjonijiet hemm kontemplat hija mandatorja fil-konfront ta’ dik il-parti li tkun ħatja" (the application of the sanctions there provided is mandatory against the party at fault). Under articles 51 and 52 the court keeps a discretion only where the ground is one listed in article 40.

The first court had applied only article 48(1)(d), the loss of any right to demand maintenance from the other spouse. No cross-appeal asked for the other paragraphs, so the court left the order as it stood.

The husband also argued that the first court could not set aside the referee's report without good reason. The court held that article 681 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) does not bind a court to an expert's conclusions. It held that serious reasons are needed to depart from a technical expert, but that the report of a legal referee "seta’ jiġi faċilment skartat" (could easily be set aside), because the court can assess the legal aspect itself.

On maintenance, the court held that article 20(1) of the Civil Code measures maintenance by the need of the person receiving it as well as the means of the payer. The wife had filed no updated statement of the daughter's needs and no receipts. The court set maintenance at €500 a month, including health, education and extra-curricular costs, rising by 5% a year under article 54(4). Under article 3B(2)(a) it runs until the daughter turns 23 or ends full-time studies, whichever comes first.

On the jewellery, the wife brought no proof of what she had paid. The court applied the rule that the party who alleges must prove, and held the husband to the €2,500 he had accepted in place of the €3,500 the first court had ordered.

On the home, the court held that article 55A(1)(c) allows the court to assign the matrimonial home to one spouse, who compensates the other. It kept the assignment to the wife but found no basis for handing it over without a valuation. It appointed an architect to value the property, with a floor at the figure the husband declared in 2013. The husband's debts to the wife are to be deducted and any balance shared equally. Costs at first instance were split two-thirds and one-third.

Why it matters

A spouse found guilty of adultery or desertion cannot argue that shared fault softens article 48; the court has no discretion to withhold the penalties. A client relying on a legal referee's report should expect the court to test it, and a party claiming the value of gifts or a child's expenses needs documents, not estimates.

Where it sits

Articles 38 to 41 of the Civil Code list the grounds for personal separation, and articles 48 to 52 set out what the spouse at fault loses. Students learn that adultery and desertion trigger article 48 of their own force, while the article 40 grounds leave the penalties to the court. The judgment applies that split and holds that shared fault does not change it.

The court relied on earlier judgments of the Court of Appeal of 7 December 2023, 13 March 2024 and 15 July 2025 on the mandatory nature of article 48. It cited judgments of 24 February 2025 and 2 February 2026 on legal referees, and of 25 April 2024 and 31 May 2023 on article 681. On maintenance measured by need, it cited the Court of Appeal of 29 February 2024. On the wide reading of article 55A, it cited the Court of Appeal of 28 September 2007 and 6 October 2025.

Source

Court of Appeal (Superior Jurisdiction), 13/2013/4, 16 March 2026: 13/2013/4