Separation and divorce cannot be sought in one application
The Family Section granted a wife separation for irretrievable breakdown but threw out her divorce claim, filed in the same sworn application. It also held that a husband's default is not an admission of fault. It matters to every lawyer drafting a marriage claim.
Madam Justice Abigail Lofaro, sitting in the Civil Court (Family Section), on 28 May 2026 granted a wife a separation because the marriage had broken down irretrievably, but refused her request for divorce. The court held that a spouse cannot ask for separation and divorce side by side in the same sworn application. It also refused to find the absent husband at fault, holding that his default was not an admission.
The facts
In AB vs CB, the parties married in 2017 after about 13 years together and had no children. The wife testified that the husband left the home on 4 April 2019. She said that he had long had debts, borrowed from moneylenders at usurious rates and gambled, and that after he left he threatened her.
The husband was abroad, so the court appointed deputy curators to represent him. A mandatary, that is, a person acting under his power of attorney, later took over the case for him but filed no reply, and the court declared the husband in default. The wife's sister and a representative of a Caritas foundation for victims of usury testified for her.
The wife asked for separation for excesses, cruelty and grave injuries, or for irretrievable breakdown in the alternative. She asked the court to apply article 48 of the Civil Code (Chapter 16 of the Laws of Malta) against the husband and to pronounce divorce under article 66D(3). She had opened mediation by letter in January 2020.
What the court held
The court held that the grounds in article 40 need not all be proved and that one is enough. It found, however, that the only firm evidence of the husband's money problems dated from 2015, two years before the wedding. The foundation's witness said the debts were a few thousand euro and that the husband soon settled them himself.
The messages the wife produced contained accusations of adultery by the husband, but nothing about money. The court held that excesses, cruelty and grave injuries had not been proved to have happened during the marriage. It stressed that "il-kontumaċja ma tfissirx ammissjoni, anzi tfisser kontestazzjoni" (default does not mean admission; rather, it means contestation).
On desertion, article 41 requires two years' absence without good reason. The wife did not explain what led the husband to leave, and the messages showed the parties were still in contact then. The court could not find that he left without valid reason, but it was satisfied that the marriage had broken down irretrievably.
Because the separation rested on breakdown, not on adultery or desertion, the effects of article 48 were not mandatory. The court used its discretion under articles 51 and 52 and refused to apply them.
On divorce, the court followed its own earlier ruling that separation and divorce are distinct remedies with different procedures and effects. A spouse may convert a pending separation into divorce under article 66F before the case is left for judgment, or file for divorce and join the separation claims under article 66D(3). The court held: "Ma setgħetx l-attriċi hawn tiddeċiedi illi titfa’ ż-żewġ talbiet f’rikors wieħed" (The plaintiff could not here decide to put both claims in one application).
The court added that regulation 4 of Subsidiary Legislation 12.20 requires a spouse seeking divorce to open mediation by application, not by letter. The note in which the lawyer confirms the duties in article 66G had also not been filed. The divorce claim was therefore defective, and the court pronounced separation only.
The court declared the house the wife bought alone in 2012 her paraphernal property, meaning property that belongs to her alone, and no longer the matrimonial home. Each party keeps the loans taken in their own name. The wife may take back her maiden surname under article 62(1), and the husband pays three-quarters of the costs.
Why it matters
A sworn application that asks for separation and divorce together risks losing the divorce claim. Lawyers should choose the route at the mediation stage, then either convert under article 66F or file a divorce application with the lawyer's note.
Against a spouse in default, the facts of fault must still be proved. Evidence of problems before the wedding will not show fault during it.
Where it sits
Article 40 lists excesses, cruelty, threats and grave injuries, and irretrievable breakdown, as grounds for separation, and article 41 adds desertion for two years without good reason. The penalties in article 48 follow automatically for adultery and desertion; for the article 40 grounds they depend on the court. Divorce sits in articles 66A onwards, which do not require a prior separation.
On cruelty and excesses the court cited the First Hall of the Civil Court (30 June 1961 and 2 October 2003) and the Court of Appeal (25 November 2016). It cited the First Hall (12 May 1925) on one ground being enough, and the First Hall (22 February 1961 and 16 December 1949) on desertion. On the double claim it followed its own judgments of 6 July 2022 and, in AB vs CDB, 27 April 2017.
Source
Civil Court (Family Section), 292/2021, 28 May 2026.