Excluding fidelity from the start annuls a civil union

The Civil Court (Family Section), Madam Justice Jacqueline Padovani Grima, decided SH vs JH nee Z on 30 June 2026. It declared the parties' civil union of 23 March 2021 null ab initio under article 19(1)(f) of the Marriage Act (Cap. 255), because the respondent had positively excluded fidelity, an essential element of married life. It rejected the two other grounds pleaded: fraud under paragraph (c) and defect of discretion under paragraph (d).

The facts

The parties met online in April 2018 and within three months were exchanging promises of loyalty and exclusivity and talking about children. The applicant twice paid for the respondent to visit her and her family abroad.

When the pandemic stopped travel, the respondent proposed so that the applicant could move to Malta; the applicant sold her belongings, left her job and her dogs, quarantined in Croatia and joined in a civil union at the Public Registry with none of her family present.

Two months later she found on the respondent's phone that, throughout the relationship, the respondent had been sexting other women and had an affair with a married colleague, including while the applicant was selling up to relocate. The respondent deleted her social media profile and chats. In March 2022 she admitted everything; the parties tried living abroad and separated by the end of that year.

The respondent pleaded that there was no deception, that any infidelity was at most a ground for separation under article 38 of the Civil Code, and that the applicant wanted nullity to avoid an equal division of the community.

What the court held

The court started from the presumption of validity. Nullity is the exception, to be proved to the court's full satisfaction and construed restrictively, as the court had said in L-Avukat A.B. noe vs E.D. (Family Section, 31 January 2018) and the Court of Appeal in C.F. vs P.F. (12 July 1987) and J.Z. vs B.Z. (27 January 2006). The burden lies on the party alleging nullity.

The applicant had identified her legal grounds only when pressed, and had then pleaded three that contradict each other. Following A.B. vs C.D.C.E. (Family Section, 20 October 2024), the court held that contradictory grounds do not nullify the action; whichever applies excludes the others. Paragraph (d) went first: the messages showed both parties understood what married life required, so there was no defect of discretion.

Paragraph (c) also failed. Fraud under that paragraph must concern a quality of the person, and the court adopted the list from R.S. gja M. vs Dr J.B. noe (22 November 2022): illness, infertility, insanity, addiction, or a sexual orientation other than expected in the relationship. The respondent had deceived the applicant about being faithful, but had hidden no such quality of herself.

Paragraph (f) succeeded.

The court applied the test in S.C. vs R.C. (Family Section, 10 December 2014): nullity follows where “xi hadd mill-partijiet huwa hati ta’ simulazzjoni fis-sens illi minn barra kien jidher li qed jaghti l-kunsens ghar-rabta matrimonjali mentri fil-fond tal-menti tieghu jew taghha iz-zwieg jew xi element essenzjali tal-hajja mizzewga kien qed jigi eskluz a priori” [one of the parties is guilty of simulation, in that outwardly they appeared to consent to the matrimonial bond while in their mind the marriage or an essential element of married life was excluded a priori].

There was no direct evidence of affairs after the ceremony, but the court found it significant that the respondent deleted the evidence on discovery, apologised for the affairs without ever saying they had stopped, and told the applicant to stop reading the messages. It concluded that the respondent “never had the intention to be faithful” and went into the union “without ever discussing with her, her inability to be in a monogamous relationship”.

The union was declared null under article 19(1)(f), the Director of the Public Registry was ordered to note the nullity on the civil union act, and costs went against the respondent.

Why it matters

Concealed infidelity is not, on its own, a fraud ground: paragraph (c) is about hidden qualities of the person, not hidden conduct. The route is paragraph (f), and it needs proof of a settled state of mind at the moment of consent, which here was inferred from conduct before and after the ceremony. Plead the ground from the start; the court noted that this applicant had to be pressed to name any.

Where it sits

The case sits in the nullity grounds of article 19(1) of the Marriage Act, read with the presumption of validity.

The authorities the court named are L-Avukat A.B. noe vs E.D. (Civil Court, Family Section, 31 January 2018); C.F. vs P.F. (Court of Appeal, 12 July 1987); J.Z. vs B.Z. (Court of Appeal, 27 January 2006); A.B. vs C.D.C.E. (Civil Court, Family Section, 20 October 2024); M.F. vs J.F. (First Hall, 13 March 1995), which sets out the four elements of fraud; R.S. gja M. vs Dr J.B. noe (Civil Court, Family Section, 22 November 2022); S.C. vs R.C. (Civil Court, Family Section, 10 December 2014); and A.G. vs Dr A.C. noe (First Hall, 28 May 2002) on exclusion shown by acts before and during married life.

Source

Civil Court (Family Section), 203/2023, 30 June 2026: 203/2023.