Pendente lite delay alone is not an unfair hearing
The First Hall, constitutional jurisdiction, dismisses a husband's complaint that the Family Section took two years to decide his pendente lite applications and left a protection order in force. No breach of article 39, article 6 or article 8 was found.
The Civil Court, First Hall, sitting in its constitutional jurisdiction under Madam Justice Rachel Montebello, decided on 24 June 2026 an application by a husband against the State Advocate and his wife.
He complained that the Family Section had taken two years to decide his pendente lite applications in the separation case, had left a protection order against him in force throughout, and had thereby breached article 39 of the Constitution, articles 6 and 8 of the Convention and Article 1 of the First Protocol.
The court dismissed every claim, with costs against him.
The facts
The couple married in 2009 and have one son, a minor. Separation proceedings began in September 2021. In April 2022 the husband asked the Family Section to evict his wife from the matrimonial home and to entrust the boy to his exclusive care and custody; he later asked for documents to be expunged, for the community of acquests to cease and for the boy to attend football training.
On 2 December 2022 the wife filed an urgent request for a protection order under article 412C of the Criminal Code. The Family Section issued it the same day and the husband left the home. Three days later the court revoked the order in so far as it covered the son and gave the husband access to him.
The husband's applications were decided only in October 2024, after this constitutional action had been filed in July 2024: his eviction and revocation requests were refused and the order in the wife's favour was affirmed.
What the court held
The court first rejects the State Advocate's preliminary pleas under article 46(2) of the Constitution and article 4(2) of Chapter 319. The husband had no ordinary remedy that was accessible and effective when he filed. The guarantees of article 6 extend to interim measures that are immediately enforceable and rule on the same right as the main case.
On impartiality, the court applies the subjective and objective tests. A judge is presumed impartial until the contrary is proved, and «mhux kull biża' ta' imparzjalita' għandu jagħti lok għal rikuża» [not every fear of partiality gives rise to a challenge]. Delay and refusal of a party's requests do not by themselves create an objective appearance of bias, less still where the decisions followed voluminous evidence heard over twenty-five sittings.
Article 37(2) of the Civil Code lets the Family Section issue a protection order under article 412C of the Criminal Code on its own initiative and before hearing the parties, so an order issued within hours proves nothing.
On delay, the court applies the usual criteria: complexity, the conduct of the parties, the conduct of the authorities and what is at stake. Cases on custody and access call for special diligence, but a contested separation is not a simple case. The parties agreed on nothing, the file ran to almost two thousand folios, care and custody remained joint throughout and access was regulated within three days of the order.
The applications could have been decided sooner, above all after counsel reminded the court on 7 February 2024, «iżda li hu żgur, id-dewmien li seħħ ma jistax jitqies li niġġes il-proċediment kollu» [but what is certain is that the delay that occurred cannot be taken to have tainted the whole proceeding].
The requests to expunge documents, to allow football training and to end the community of acquests before the separation judgment do not determine a civil right, so the article 6 guarantees do not attach to them separately.
Equality of arms guarantees procedural, not substantive, rights, and the husband was never stopped from filing, replying or producing evidence.
On article 8, the order was an interference, but one made in accordance with law, since the request alleged domestic violence within article 2 of Chapter 581, for the legitimate aim of protecting the child and his mother, and proportionate. The constitutional court does not substitute its discretion for the Family Section's; it asks whether the reasons given were relevant and sufficient, and they were.
A failure to follow the procedural steps in article 37 of Chapter 16 is not a fundamental rights matter. The husband had cited article 32(c) of the Constitution but had not asked for a declaration under it, so the court took no cognisance of it.
Why it matters
A constitutional complaint about delay in a separation must show that the whole proceeding was tainted, so count the sittings and the folios before filing. The article 6 guarantees attach to interim decisions that determine a civil right, such as the matrimonial home, custody or maintenance, and not to housekeeping requests. If a declaration under article 32 of the Constitution is wanted, ask for it in the prayers.
Where it sits
The case applies the right to a fair hearing within a reasonable time by an impartial court under article 39 of the Constitution and article 6(1) of the Convention, and the proviso to article 46(2) on ordinary remedies. On impartiality the judgment cites the Constitutional Court (26 February 2009 and 17 July 1996), the First Hall (4 July 2017) and, from Strasbourg, a judgment against Malta (15 October 2009) and A and B v. Malta (24 June 2025).
On length it draws on Strasbourg judgments against Finland (23 September 1994) and Italy (18 February 1999); equality of arms follows a judgment against Italy (20 July 2001); the positive obligations under article 8 follow a judgment against Ireland (9 October 1979).
Source
Civil Court, First Hall (Constitutional Jurisdiction), 329/2024, 24 June 2026: 329/2024