Spouse who deserts the family forfeits rights on divorce

The Civil Court (Family Section) on 8 January 2026 granted a divorce under article 66B of the Civil Code (Chapter 16 of the Laws of Malta) and held the husband solely to blame for the breakdown. Mr Justice Anthony Vella found that he had committed domestic violence against his wife and later deserted her and their daughter. The court applied the forfeitures in articles 48 to 53 against him in full and ordered maintenance and arrears.

The facts

BB, the wife, sued KB, her husband, who is absent from Malta and was represented by deputy curators the court appointed. The couple married in 2010 and lived together until 2015. That year the police removed the husband from the home after an episode of violence, and a criminal court found him guilty after he admitted the charges.

In 2016 the spouses signed a limited agreement on their daughter's care and maintenance, which set €200 a month. The husband paid for a time. In 2018 he left Malta without telling his probation officer or obtaining the court's permission, stopped paying and cut off contact.

The curators said they did not know the facts. No evidence contradicted the wife's sworn account.

What the court held

The court found the wife's version proved. It held that the fault for the breakdown lay entirely with the husband, who had committed domestic violence, which he admitted, and then left his wife and daughter without support.

That finding brought forfeiture. The court noted that under article 48(d) a spouse who has deserted the other for more than two years loses the right to claim maintenance. It held: “il-konvenut ilu li abbanduna lill-martu u lill-bintu sa mis-sena 2018, u ghalhekk il-Qorti qed taghmel dikjarazzjoni ta’ dekadenza fil-konfront tieghu b’effett minn din id-data” (the defendant has deserted his wife and daughter since 2018, and so the court declares his forfeiture with effect from that date).

The court dissolved the community of acquests. It set January 2018 as the date from which the husband forfeited any share in acquests made by the wife's work. It gave the wife her own bank accounts, which she had opened before the marriage, and let her administer the savings kept for their daughter.

The flat the family lived in was the wife's paraphernal property, meaning property that is hers alone. The court held that the husband had no rights over it and had forfeited any claim to half the loan repayments made on it during the marriage.

The court gave the mother sole parental authority and care of the daughter. She may take every decision, ordinary and extraordinary, including passports, health and education, without the father's signature. It held that this was in the daughter's best interests.

On maintenance, the court relied on article 3B(2), which places the duty to maintain children on both parents equally, and on article 54. It set €400 a month for the daughter, including the father's share of health, education and extra-curricular costs, rising each year with the cost of living. It ordered the sum deducted directly from any wages or benefits he may receive.

The court also ordered €28,800 in arrears, at €300 a month from 2018 to 2025. It held that it could make that order because the parties are still married, and under article 2123(a) prescription does not run between spouses. It set maintenance of €300 a month for the wife should she become unemployed and issued a protection order in favour of the wife and the daughter.

Why it matters

An absent spouse represented by curators can still be found at fault, and the full forfeitures can follow, where the petitioner's sworn evidence stands uncontradicted. Maintenance arrears for a child can be claimed years later while the marriage lasts, because article 2123(a) stops prescription between spouses.

A parent left alone with a child can ask the court for sole parental authority, including power over passports.

Where it sits

Article 40 lets a spouse seek separation for excesses, cruelty, threats or grievous injury, or because the marriage has broken down irretrievably. Article 41 adds desertion for two years or more without good reason. A spouse found to blame suffers the effects of article 48, including the loss of maintenance and of half the acquests made after a date the court fixes.

The court cited the Court of Appeal (30 October 2015) on marriage as a shared life directed at the family's interest. On cruelty and grievous injury it cited the Court of Appeal (15 December 2015), which held that only repeated and habitual failings that make shared life unbearable qualify, and the First Hall of the Civil Court (30 June 1961).

On desertion it cited the First Hall (16 December 1949), which requires a firm and constant intention to abandon, and the Court of Appeal (14 December 1953), which excludes from the two years any period when separation proceedings were pending. On the child's interests it cited the Court of Appeal (25 November 1998), and on setting maintenance the Court of Appeal (6 February 2015).

Source

Civil Court (Family Section), BB vs KB, 49/2025, 8 January 2026.