Divorce waits while spousal maintenance is in dispute
The Gozo Family Court refused to pronounce divorce ahead of the final judgment: article 66B requires adequate maintenance to be in place, and a pendente lite decree the husband is contesting does not count.
The Court of Magistrates (Gozo), Superior Jurisdiction, Family Section, Magistrate Franca Giordmaina, decided AB vs CD on 26 August 2026. The spouses had jointly asked the court to pronounce their divorce in a separate judgment before the final decision on the division of the community and on maintenance.
The court refused. Article 66B of the Civil Code requires it to be satisfied that adequate maintenance is being received where due, and a pendente lite decree that the husband is asking the court to end does not meet that test.
The facts
The parties married in Xewkija in December 1978 and have three adult children. The wife filed for separation in 2023, alleging the breakdown was mainly the husband's fault and asking for maintenance out of his pension, the article 48 forfeitures against him, liquidation of the community, return of her paraphernal property and reversion to her maiden name.
The husband did not oppose separation but denied fault, said she had ample means of her own, renounced any maintenance for himself, and claimed she owed the community money spent on her paraphernal assets. On 1 August 2023 the court ordered the cessation of the community of acquests. On 26 November 2024, under article 66F, it authorised the separation claim to be treated as a claim for divorce.
Maintenance for the wife had been fixed pendente lite by decree and was being paid.
On 22 June 2026 counsel filed a joint note asking for divorce to be pronounced now, declaring that the parties had lived apart for far longer than the six months required, that there was no reasonable prospect of reconciliation, that maintenance was up to date, and that the pronouncement should be without prejudice to the outstanding questions, one of which they described as the husband's contention that he should no longer pay the wife maintenance at all.
What the court held
The court first dealt with article 66D(5), which lets spouses whose community has already ceased proceed to divorce by agreement without liquidating it. Citing the Court of Appeal in A.P. v. M.R.P. (26 January 2018), which held that a simple agreement suffices and no prior personal separation is needed, it found that limb satisfied: the community had ceased in 2023 and the request was joint.
Article 66B was the obstacle. Its requirements are, alternatively, that the spouses have lived apart for six months of the preceding year on a joint request, or are separated by contract or judgment; and, cumulatively, that there is no reasonable prospect of reconciliation and that the spouses and children are receiving adequate maintenance where due.
The court treated the separation in fact and the absence of any prospect of reconciliation as established. On maintenance it asked itself “jekk il-Qorti tistax tgħaddi għall-pronunzjament tas-sentenza ta’ divorzju meta għad hemm kontestazzjoni dwar il-ħlas ta’ manteniment. Din il-Qorti ttendi li twieġeb fin-negattiv” [whether the court may proceed to pronounce a judgment of divorce while there is still a dispute over the payment of maintenance. This court is inclined to answer in the negative].
The proviso to paragraph (d) defines adequate maintenance as that ordered by a separation judgment or agreed in a separation contract; neither exists here, and a contested pendente lite decree is not the same thing.
The court drew support from the Court of Appeal in Z1 v. Z2 (10 March 2026), which said that spouses not legally separated may jointly seek divorce only if, among other things, there are no questions between them over maintenance payments, whether for a spouse or for the children.
Unless the wife renounces or withdraws her maintenance claim, as happened in the case the court cited, Dr M.E. noe v. Y.W. (Family Section, 30 January 2018), maintenance must be decided in the final judgment together with the divorce.
The court therefore held that the statutory requisites were not all met, declined to consider the request further, reserved the divorce question to a suitable later stage, and left the costs of the decision untaxed between the parties.
Why it matters
A joint note cannot buy an early divorce while one spouse is still fighting the other's maintenance. Either settle or renounce the maintenance claim before asking, or accept that the divorce arrives with the final judgment. Counsel who draft “without prejudice” notes should notice that the reservation of the maintenance dispute is precisely what defeats the request under article 66B(d).
Where it sits
The case applies articles 66B, 66D(5) and 66F of the Civil Code and reads the proviso to article 66B(d) literally. The authorities the court named are A.P. v. M.R.P. (Court of Appeal, 26 January 2018) on divorce without liquidation once the community has ceased; Z1 v. Z2 (Court of Appeal, 10 March 2026) on the conditions for a joint request; and Dr M.E. noe v. Y.W. (Civil Court, Family Section, 30 January 2018) on renunciation of maintenance clearing the way.
Source
Court of Magistrates (Gozo), Superior Jurisdiction, Family Section, 29/2023, 26 August 2026: 29/2023.