Intimate chats count as grave injury even short of adultery

The Court of Appeal, sitting in its superior jurisdiction, held on 17 February 2026 that chats showing an intimate relationship with third parties are at least a grave injury under article 40 of the Civil Code, even where they do not prove adultery. In Z1 vs Z2, Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech changed the split of fault for the breakdown of the marriage from 75% and 25% to equal shares. Every other grievance on both sides failed.

The facts

The husband sued the wife for separation before the Civil Court (Family Section), alleging violence, cruelty and grave injuries. The wife blamed his conduct and alleged adultery. The couple have two children, both now adults.

Some years into the case the husband asked for it to be treated as a divorce case under article 66F. On 8 May 2025 the Family Section dissolved the marriage. It found the husband 75% at fault for cruelty, grave injuries and adultery, and the wife 25% at fault for cruelty and for letting her mother intrude on the marriage.

It applied the effects of article 48 against the husband alone and ordered the matrimonial home to be sold, with a credit of €50,000 to the husband for his work on it. The wife appealed on six points. The husband cross-appealed, asking for the wife to be found solely at fault and for his credit to be raised to €117,955.

What the court held

On divorce, the wife argued that the husband had never paid half the children's health and education costs, so the maintenance condition in article 66B was not met. The court found that the €500 monthly maintenance ordered during the case already covered those costs. It called the grievance “manifestament fieragħ u vessatorja” (manifestly frivolous and vexatious).

Her claim for maintenance for the adult children also failed. Article 3B keeps maintenance running up to the age of 23 during full-time study, but under article 562 of the Code of Organization and Civil Procedure the party alleging a fact must prove it. She brought no proof of full-time study.

On the cross-appeal, the court restated how adultery is proved. Direct proof is rarely possible, so the party alleging it relies on indications and presumptions that are “preċiżi, gravi, konkordanti u univoċi” (precise, grave, concordant and unequivocal). Where they fall short but suggest an intimate and special friendship, the court may treat that friendship as a grave injury under article 40.

The court found that the wife's chats with two third parties, while the spouses still lived under one roof, were not “sempliċement ħbiberija” (mere friendship). It held: “Jekk mhumiex prova inkonfutabbli ta’ adulterju huma prova ta’ inġurja gravi” (If they are not irrefutable proof of adultery, they are proof of grave injury).

It also relied on a witness's evidence of an intimate relationship with the wife soon after the husband left, which she had not answered. The court declared both spouses equally at fault and, under article 223 of the Code of Organization and Civil Procedure, shared the first-instance costs equally.

The remaining grievances failed for lack of proof or because they misread the judgment. The first court had applied article 48 against the husband only. The wife brought no evidence of payments to workers or of the cars' value, and an appeal is not a second chance to bring evidence. With both children adults, the court saw no reason to delay the sale of the home.

Why it matters

A spouse who cannot prove adultery to the full standard can still establish fault on the same messages, as grave injury. An appellant who repeats first-instance submissions without meeting the reasons given risks having the grievance called frivolous. A party who says maintenance leaves out education costs must first show what the maintenance order covered.

Where it sits

Students learn two groups of grounds for separation. Adultery and desertion carry the forfeitures of article 48, which the court described as mandatory. The other grounds, including grave injury under article 40, leave those effects to the court's discretion under articles 51 and 52. This judgment sits on the border, where evidence of infidelity does not reach adultery but still counts under article 40.

On proof of adultery by indications, the court cited the Court of Appeal (30 May 2008, 30 September 2011 and 16 July 2024). On intimate friendship as grave injury, it cited the Court of Appeal (30 October 2015, 2 March 2018 and 7 February 2019). It added that an unproven allegation of adultery can itself be a grave injury, citing the First Hall of the Civil Court (2 October 2003).

On mandatory and discretionary forfeiture, it cited the Court of Appeal (23 June 2022 and 7 December 2023). On the maintenance condition for divorce, it cited the Court of Appeal (12 May 2022), which read article 66B(ċ) together with article 66D(2).

Source

Court of Appeal (Superior Jurisdiction), 373/2011/2, 17 February 2026.