Issue link: https://maltatoday.uberflip.com/i/1190498
| SUNDAY • 8 DECEMBER 2019 maltatoday 17 ON the 27th November 2019, the Civil Court (Family Section) presided over by Madame Justice Abigail Lofaro LL.D. rejected a request for the dissolu- tion of the community of acquests ex- isting between spouses, which was filed by the husband during the pendency of personal separation proceedings. The plaintiff claimed that none of the spouses will suffer a prejudice if the community of acquests is dissolved because the spouses live a separate life, there exists no possibility of reconcili- ation between them and the matrimo- nial home was sold to pay the bank that was a creditor of the spouses. The defendant, on the other hand, opposed the dissolution of the com- munity of acquests, arguing that this would create a disproportionate prej- udice since the assets and liabilities comprising the community of acquests have not been determined as yet. The Court made reference to of Ar- ticle 55 of the Civil Code which allows any one of the spouses at any time dur- ing the cause of separation to demand the Court to order the cessation of the community of acquests existing be- tween the spouses. The Court order is given by means of a judgement fol- lowing which each party has a right of appeal. Once the judgement becomes final, the decision remains valid be- tween spouses even if separation pro- ceedings are discontinued. Thus, when the Court is faced with such a request, it must ensure that none of the spouses would suffer a disproportionate preju- dice if the cessation of the community of acquests is determined before the judgement of separation. Not every prejudice leads to justified opposition to the dissolution of the community of acquests. The Court fol- lowing the teaches of the Court of Ap- peal explained that a disproportionate prejudice must be proved by the party alleging it in accordance with the prin- ciple 'incumbit ei qui dicit non ei qui negat'. The defendant explained that since the institution of the separation pro- ceedings, the plaintiff refused to pay any debts, including debts arising from the plaintiff's business of which he is the sole beneficial owner and director thereof. Notwithstanding this, the last account statements presented in Court dated back to 2013. The defendant further claimed that during the pen- dancy of the separation proceedings, the plaintiff was managing the assets of the community of acquests alone, without the consent and knowledge of the defendant. The plaintiff although giving the impression of suffering from financial difficulties, in reality works in the construction industry and does so by using a prestanome. The plaintiff's refusal to pay debts resulted in one of the local banks instituting proceedings against the spouses. Consequently, the defendant had to succumb to the sale of the matrimonial home in order for the creditor bank to be paid. For these reasons, the defendant contended that the assets and liabilities of the commu- nity of acquests are not yet quantified, due to the manouvers of the plaintiff. The Court observed that with respect to the defendant's allegations of using third parties to act as prestanome there was no objection from the plaintiff's part for witnesses to be summoned to testify on the matter. These allegations are not evident at this stage of the sepa- ration proceedings since testimony on this aspect still needs to be heard. From the acts of the separation pro- ceedings, the Court took note of the Bank accounts held by spouses fol- lowing which the Court noted that the plaintiff manages and is the director of a company about which at this stage of the separation proceedings, not all evi- dence of the Company's undertakings has been presented in Court. There- fore what comprises the community of acquests of the said spouses is still not known to the Court. Apart from the fact that the matrimonial home had to be sold to pay a creditor bank, for debts which were made by the plaintiff. The Court found that the exceptional elements provided under Article 55 subarticle 4 of the Civil Code for the cessation of the community of acquests not to occur at this stage have been sat- ified. The cessation of the community of acquests would create a dispropor- tionate prejudice against the defend- ant. Consequently, the Court did not de- clare the cessation of the community of acquests between the spouses at this stage. Commenting on the fact that the alleged prestanome by the defendant has not yet been proved, the Court also reserved the right to provide further decisions, in the event of a subsequent request, should this be the case. For the above reasons, the Court re- jected the request of the plaintiff. Court refuses to decide on the merits of an executive garnishee order LAW Dr Maria Camilleri is an Associate at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a dividing wall edging the curtilage of a detached dwelling, the height of which the owner want- ed to increase to secure privacy. Al- though the proposal appeared to be pretty straightforward, the Planning Commission declined applicant's re- quest on the premise that the allow- able height, that is to say 3.4 metres above ground floor level, was to be exceeded. Reference was in fact made to Policy P8 of the Development Control De- sign Policy, Guidance and Standards 2015, which policy provides that side and rear boundary walls may not exceed a height of 3.4 metres. The Commission also found that the proposal was incompatible with Ur- ban Objective 3 of the Strategic Plan for Environment and Development which objective aims to protect and enhance the character and amenity of urban areas. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that he should have been granted permission. In his appeal application, applicant (now, appellant) said that the height of the boundary wall was to be increased in view of 'impending security and privacy reasons' and also to address 'the inhuman and degrad- ing situation in which he (applicant) and his family were thrown with the development of surrounding areas into higher rising residential tene- ments.' Applicant argued that his vil- la was now 'surrounded, or more fit- tingly engulfed, by various buildings rising much higher than applicant's residence itself'. Applicant went on to state that his residence 'ended at the lowest level when compared to the surrounding developments', further alleging that his property was 'over- looked constantly and persistently from all surrounding developments'. Applicant described the situation as one characterised by 'public intru- sion over private spaces.' In order to reinforce the argument that the char- acter would not be compromised in the eventuality that the permit is is- sued, applicant submitted a number of photos showing a 23-course blank wall built in the immediate vicinity. In conclusion, applicant contended that 'the raising of the party walls was the only way in which a degree of private and family life' could be achieved. In reply, the Authority, however, reiterated that applicant's property consisted of a low-lying detached building situated in a designated villa area. The Tribunal was thus remind- ed that there was no reason to ignore the current policies which make it clear that boundary walls could not be higher than 3.4 metres. In its assessment, the Tribunal how- ever observed that applicant's resi- dence was located at the periphery of a designated villa zone, next to an area committed with multi-storey dwellings. The Tribunal held that applicant's concerns were clearly justified and saw nothing wrong with allowing the wall construction over and above the stipulated policy limits. Against this background, the Authority was or- dered to issue the relative permit. Privacy concerns justify raising of boundary wall LAW & PLANNING