Issue link: https://maltatoday.uberflip.com/i/1322776
maltatoday | SUNDAY • 27 DECEMBER 2020 15 A decision of the Civil Court (Family Section) was overturned by the Court of Appeal by the judgment Sarah Gatt v. Jean Pierre Gatt delivered on the 26th November 2020. Through an application filed on 9th January 2019, the plain- tiff requested the Civil Court (Family Section) to pronounce the dissolution of marriage and to authorize her to revert to her maiden surname, in terms of Article 66B of the Civil Code. The defendant held that there is no reasonable prospect for rec- onciliation since they have been de facto separated for more than four years, living totally separate and independent lives. By a sentence delivered on the 14th October 2019, the First Hall declared that the proceed- ings are affected by a grave procedural defect, therefore the Court refrained from con- sidering any other pleas raised by the applicant in relation to the merits of the case. As to the applicant's declaration that the parties had been legally sepa- rated since 5th December 2018 by a judgment delivered by the First Hall Civil Court as differ- ently presided, the Court held that the sentence given was ap- pealed and is still sub-judice. The First Hall Civil Court ac- knowledged that the legislator provides for instances wherein the parties can request a di- vorce whilst separation pro- ceedings are pending. Refer- ence was made to Article 66F(1) allowing the parties in a cause for separation to request, by an application, that the demand for separation be considered as a demand for the pronounce- ment of divorce. The Court also made refer- ence to Article 66F(3) providing for a situation where a demand of divorce is made after a de- mand for separation, in which case both demands shall be heard and decided together by the same court. This is allowed any time during the cause as long as the cause has not been adjourned for judgment. The Court decided that in the case concerned the parties did not avail themselves of these procedures before the cause had been adjourned for judgment since the demand for divorce was made once the separation proceedings were pending be- fore the Court of Appeal. The First Hall Civil Court held that since the parties are not legally separated and they did not avail themselves of Article 66F, they would need to abide by the re- quirements of Regulation 4(1) of Subsidiary Legislation 12.20. This requires the filing of an application in the Court Regis- try, requesting authorization to proceed with the divorce appli- cation. The Court also referred to Article 66G(2)(a) requiring the lawyer representing the appli- cation to present a note con- firming that the requirements of Article 66G(1) have been followed, which note was not presented. On the 30th October 2019, the plaintiff filed an appeal from this decision given by the First Hall Civil Court, holding that the appeal was lodged only in relation to the assignment of debts and only concerned an issue relating to the community of acquests. Both parties agree that the sentence delivered by the First Hall Civil Court shall be re- voked since the cause of separa- tion was res judicata in relation to that which concerns who is responsible for the separation and no appeal was lodged as to the declaration concerning the separation between the parties. The Court of Appeal held that it is evident that the First Hall Civil Court did not evaluate the appeal application filed by the defendant in the separa- tion cause. In fact, the Court of Appeal concluded that the part of the sentence determin- ing the separation between the parties is res judicata. Whereas the First Hall Civil Court made reference to Articles 66F(1) and (3), the Court of Appeal held that since the demand for divorce was made after the de- mand for separation was pro- nounced and became res judi- cata the applicant did not need to invoke these articles. Moreover, Regulation 4(1) of Subsidiary Legislation 12.20 was declared as inapplicable on the basis that the procedure contemplated in such regula- tion is meant to initiate medi- ation and attempts to reconcile the parties. However, as con- veyed through Article 66I of the Civil Code, it is evident that the parties need to appear in front of a mediator only "where the spouses are not separated by means of a contract or a court judgement" therefore this need does not apply to the case at hand. Having considered that the parties were separated by means of a court judgment which has become res judicata, the Court of Appeal revoked the judgment given by the First Hall (Family Section) on 14th October 2019 and referred the proceedings back to the Civil Court (Family Section) to de- termine the merits of the case. COMMERCIAL CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Evaluation of appeal is required to determine which declarations are res judicata HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 PROPERTY FOR SALE QAWRA – Calling all developers this is an ideal development opportunity. Presently a 3 bedroomed penthouse with own airspace on the outskirts of Qawra close to Kennedy Grove, not far from the new primary school and main bus routes. Two double bedrooms and 1 single bedroom, two bathrooms, lift, double glazing doors and windows. With the option to build up a further 3 floors. Offers in the region of €310k. Once developed these apartments would be a strategic rental investment or resale opportunity. Kindly message owner on 99201846. NO AGENTS. SAN GWANN- Open plan 190sqm, ready to move into designer finished second floor apartment in a central quiet street forming part of a block of 5 apartments. Two double A/C bed- rooms and 1 single A/C bedroom, two bathrooms, lift, double glazing doors and windows. Direct from owner €350k inquire on 79402244. TARXIEN - Larger than usual first floor duplex maisonette. Three bed- rooms; double glazed windows; invert- er air conditioners including solar water heater. Being sold furnished. Own airspace with possibility of fur- ther development. Contact owner on 99912005/99450639. SERVICES NEWSPAPER adverts - Book & pay on-line on www.perfecta.com.mt - no extra charges. Call on 21322452 SITUATIONS VACANT SIGNAL 8 - Signal 8 Security Malta Ltd. requires filling positions as Customer Care Clerks, Security Guards, security for places of entertainment and clean- ers. Applicants should be customer care orientated, smart and flexible for shift work. Email your CV to hr@sig- nal8securitymalta.com.mt VACANCIES - Biryanihouse & Sweets is looking for experienced Tandoori chef, Indian pastry chef, curry chef, kitchen helper, and delivery person- nel with a valid car driving license for full time employment. Suitable candi- dates are requested to send a detailed CV to biryanihousemalta@gmail.com employment. Suitable candidates are requested to send a detailed CV to info. xzonemalta@gmail.com MULTIPLE VACANCIES - Xzone Detergent shop is looking for store manager, storekeeper, shop assistant, cashier and delivery personnel with a valid car driving license for full time employment. Suitable candidates are requested to send a detailed CV to info. xzonemalta@gmail.com WANTED COLLECTIBLE items such panini albums and loose stickers, old post- cards and posted envelopes, medals, militaria, coins and paper money, books, toys, stamps, badges, paint- ings, gold & silver items etc. Call on 21310238, 99246632. LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates