Separation fault can run from the wedding day

The Civil Court (Family Section) on 22 January 2026 pronounced the personal separation of a couple who never lived together and held the husband solely to blame. Madam Justice Abigail Lofaro found him guilty of adultery and grievous injury and fixed the date of the marriage itself as the date from which he was at fault. Because adultery was proved, the court applied the forfeitures of article 48 of the Civil Code (Chapter 16 of the Laws of Malta) against him in full.

The facts

AB, the wife, sued CD, her husband, after mediation failed. He filed no reply, and the court declared him contumacious, that is, in default. Although notified of the sittings, he never appeared.

The spouses married at the Marriage Registry when she had only just come of age and he was much older. They chose her mother's house as the matrimonial home, but he never moved in and kept living in a flat he rented.

Her sworn evidence, and the messages between them, showed that he asked her for money again and again. She said she lent him about €4,000, of which he returned €1,000. Within months of the wedding he posted a photograph with another woman, and he later announced online that they were expecting a child.

Witnesses from public registries and the state hospital gave evidence that he is the registered father of a child born to another woman. A witness from the residence authority said his latest residence permit was issued because he had married a Maltese citizen.

What the court held

The court held that the marriage had broken down irretrievably and noted that the parties never in fact lived a married life together. It found that the husband took advantage of the wife's youth and vulnerability to obtain a residence status that marriage to a Maltese citizen gives, and to get money from her whenever he asked.

The court's reasoning was direct: “dan iż-żwieġ mhux talli tkisser, talli tkisser mill-bidu tiegħu stess, għaliex joħroġ biċ-ċar illi l-konvenut iżżewweġ biss għal gwadann personali” (this marriage did not merely break down, it broke down from its very start, because it is clear that the defendant married only for personal gain).

On that basis the court found him guilty of breaking the marriage through grievous injury, in the way he treated his wife from the start, and through adultery. It found the adultery plain and manifest. It fixed the date of the marriage as the date from which he was to blame.

On forfeiture, the court held that separation for adultery or desertion brings consequences that are mandatory under article 48. For the other grounds, articles 51 and 52 leave the court a discretion. Since adultery was manifestly proved, the court had no choice but to apply articles 48 and following in full from the date of the marriage.

The court then dissolved the community of acquests. It found no assets bought together, only a savings account the wife had opened before the marriage, and ordered each spouse to keep what stood in his or her own name.

The court applied article 48, under which the guilty spouse loses his share in acquests made chiefly by the other's work after the date the court fixes. The wife had worked and handed him the money he asked for. The court ordered him to pay her €3,000, a sum he himself accepted he owed.

It declared that her parents' house is no longer the matrimonial home and that he has no right of habitation or any other right over it. It ordered him to pay all costs.

Why it matters

Where one spouse used the marriage from the outset for personal gain, the other can ask the court to fix the wedding day as the date of fault, so that article 48 reaches every acquest made during the marriage. Messages, social media posts and records from public registries can prove adultery even when the other spouse ignores the case.

Money lent to the guilty spouse can be recovered in the same judgment.

Where it sits

Article 36 allows personal separation only on the grounds in the articles that follow or by mutual consent. Article 38 makes adultery a ground, article 40 covers excesses, cruelty, threats, grievous injury and irretrievable breakdown, and article 41 covers desertion for two years or more. One proved ground is enough.

The court cited the Court of Appeal (30 October 2015) on marriage as a community of life and love, and the First Hall of the Civil Court (12 May 1925) for the rule that the grounds need not be proved together. On cruelty it cited the Court of Appeal (15 December 2015).

For adultery as the gravest ground, which may be proved by grave, precise and concordant indications and presumptions, the court relied on the First Hall (16 April 1953), the First Hall (1 October 2002), the First Hall (2 October 2003) and the First Hall (27 November 2003).

Source

Civil Court (Family Section), AB vs CD, 17/2024, 22 January 2026.