Forfeiture runs from judgment if no date is fixed

The Court of Appeal on 13 January 2026 allowed in part a husband's appeal from a separation judgment of the Civil Court (Family Section) of 24 June 2025. Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech rejected his grievance on fault, so he remains solely to blame for adultery and cruelty. The court held that the first court should have fixed the date from which forfeiture under article 48 applied and that, without one, forfeiture runs from the date of the judgment.

The facts

Z1, the husband, sued Z2, his wife, for separation and blamed her. She counter-claimed, alleging adultery, cruelty and harassment. The Family Section blamed him for adultery, excesses and grievous injury and applied articles 48 to 53 of the Civil Code (Chapter 16 of the Laws of Malta) against him in full.

The first court also issued a protection order in the wife's favour in its final judgment. It dealt with the couple's property, including three bank loans taken to renovate a house that belonged to the wife alone and served as the matrimonial home until it was sold. The husband appealed on seven grounds.

What the court held

On fault, the husband argued that no one proved his relationship with another woman took place before the couple separated in fact. The court pointed to his own cross-examination, in which he called the relationship intimate and placed it in years when the spouses still lived together.

The court held: “Din l-ammissjoni da parti tal-konvenut appellant in kontroeżami hija l-aqwa prova li l-konvenut ikkommetta adulterju” (This admission by the [husband] in cross-examination is the best proof that he committed adultery). It found nothing to censure in the first court's finding of excesses and cruelty either.

On forfeiture, the court held that the sanctions in article 48 are mandatory where a spouse is to blame for adultery or desertion. For the other grounds, articles 51 and 52 leave the court a discretion. A request to apply article 48 already carries a request to fix the date, so no separate claim was needed.

The first court had fixed no date, as article 48(1)(c) requires. The court held that forfeiture then runs from the date of the judgment that pronounced the separation. The wife had received the whole of a €2,700 savings account on the strength of forfeiture, with no date fixed and no proof of when the money was earned, so the court ordered the sum split equally.

On the loans, the court found that €85,788 had been repaid from community funds. It held that the first court was wrong to deduct from that figure the €60,097.37 the wife paid from the proceeds of her own house to settle the balances. It raised the husband's credit against the wife from €12,845.32 to €42,894.

The court rejected his separate claim for €40,692.88 he said he paid workers directly. The loans had financed the works, and his evidence rested on approximate figures and statements the workers signed in 2022 about works done more than 20 years earlier. It also noted that he had lived in the house for years without the community paying rent.

On the protection order, the court found that it named no conditions, no prohibited places or conduct and no period of validity, as article 412C of the Criminal Code (Chapter 9) requires. As drafted, it gave the wife no protection.

The court held that the Family Section's power under article 39 of the Civil Code is a precautionary tool for urgent cases of domestic violence while the case is heard. It is not meant for a final judgment four years after the case was filed. The court struck out the order and split the costs of the appeal four-fifths to the husband and one-fifth to the wife.

Why it matters

A spouse who asks for article 48 should make sure the judgment names the forfeiture date. Without it, forfeiture starts only from the judgment, and any assets given to one spouse on the strength of an earlier date are open to challenge.

A spouse who needs protection from domestic violence should seek the order while the case runs, with its terms, places and period spelled out.

Where it sits

Article 48 sets the consequences for a spouse to blame for adultery or desertion: the loss of rights under articles 631 and 633, of gifts from the other spouse, of half the acquests made chiefly by the other's work after a date the court fixes, and of maintenance. The date divides the acquests the guilty spouse still shares from those he or she loses.

The court followed EC vs VC (Court of Appeal, 28 June 2013) and MG vs AG (Court of Appeal, 11 January 2024) for the rule that forfeiture runs from the judgment when no date is set. It cited CM vs UM (Court of Appeal, 14 March 2024) and CW vs MS (Court of Appeal, 16 July 2024) on the duty to fix one.

On mandatory sanctions it cited CC vs GC (Court of Appeal, 23 June 2022). On proving adultery by precise, grave and concordant indications it cited SC vs LC (Court of Appeal, 30 May 2008). On the court's discretion to issue a protection order it cited MC vs RC (Court of Appeal, 5 October 2023).

Source

Court of Appeal, Z1 vs Z2, 4/2021/1, 13 January 2026.