Issue link: https://maltatoday.uberflip.com/i/433160
52 maltatoday, SUNDAY, 14 DECEMBER 2014 Opinion T he Family Court upheld a request for divorce, although the former wife claimed that her former husband did not pay her maintenance in full. The judgement, in the case ABC -v- DEC, was handed down on 9 December, 2014. The husband filed an application in court that he married his wife in 1991, and was separated by means of a court judgement in April 2013. The couple have two children one 17 and another 15. The Court of Appeal judgement gave the couple the care and custody of one child each without any one having to pay maintenance. The application points out that the two had lived separately for over four years without any chance of reconciliation. The husband asked the court to declare them divorced. The wife contested the request because her former husband failed to pay maintenance during the separation proceedings. She calculated that he owes her €3,824. She claimed that neither was it true that they lived separately for over four years. The husband had full access of the matrimonial home and went in and out as he pleased and his bedroom was reserved for him when required. The plaintiff explained to the Court, presided by Mr Justice Robert Mangion, that separation proceedings had commenced in 2000 or 2001. He claimed that no back maintenance payments are due to his former wife, because the Court of Appeal in its judgement had ordered that no maintenance should be given. The Court of Appeal reasoned that this was due to the fact that the daughter lived with the husband and the son with the wife. On the other hand the defendant explained that even during the separation proceedings that started in 2001, her former husband frequently went to the matrimonial home. He used to vanish for a period of time and then would reappear. She claimed that she was to be paid for maintenance until the judgement was delivered. The maintenance stopped when her daughter left home and went to live with her father. Mr Justice Mangion quoted Article 66B of the Civil Code which states: Without prejudice to the following provisions of this article, divorce shall not be granted except upon a demand made jointly by the two spouses or by one of them against the other spouse, and unless the Court is satisfied that: (a) on the date of commencement of the divorce proceedings, the spouses shall have lived apart for a period of, or periods that amount to, at least four years out of the immediately preceding five years, or at least four years have lapsed from the date of legal separation; and (b) there is no reasonable prospect of reconciliation between the spouses; and (c) the spouses and all of their children are receiving adequate maintenance, where this is due, according to their particular circumstances, as provided in article 57: Provided that the spouses may, at any time, renounce their right to maintenance: Provided further that for purposes of this paragraph, maintenance ordered by the court by a judgement of separation or agreed to between the spouses in a contract of separation, shall be deemed to be adequate maintenance: Furthermore, the court analysed the separation judgement which ordered the care and custody of the son to the mother and the daughter to the father, without any maintenance for the children to be paid to each other. However, the defendant is claiming maintenance up to the date of the court of appeal judgement in April 2013, but the court disagreed, because from reading of the same judgment it is clear that the court intended that this arrangement should have started when the daughter moved to live with her father. With regard to the plea that the husband had free access to the matrimonial home during the separation proceedings, the court pointed out that if the husband leaves the matrimonial home, but keeps the keys, this does not mean that he is residing in the matrimonial home. The Court then moved to accept the request for divorce and declared the couple to be a divorced couple. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A 2010 planning application for the carrying out of structural alterations and additions to an existing ODZ dwelling along with the sanctioning of existing stables and the construction of yet another stable was initially turned down by the Environment and Planning Commission after it held that the proposal does not conform with the relative planning policies. The Commission made express reference to Policy 4.3B of the Policy & Design Guidance on Agriculture, Farm Diversification and Stables (2008) which inter alia states that stables should be located within the "curtilage" of an existing building. Indeed, the Commission observed that, in this case, the land occupied by the stables consists of agricultural land which is located over 50 metres away from applicant's dwelling and separated by other fields enclosed by rubble walls. Even so, the Commission underlined that a previous permit pertaining to the same site was issued on condition that no future structural extensions are permitted. In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, insisting that new horse stables should be located in such manner as to avoid possible adverse impacts on adjacent dwellings by virtue of noise, smell and visual impact on the landscape. The applicant went further to state that "curtilage" refers to any land owned by the applicant which is enclosed by a boundary wall. In this context, the applicant contended that any stable development which is located within the immediate precincts is considered adequate, regardless of the distance between the dwelling and the stables. In addition, the applicant highlighted that the stables are partly located over disturbed land where a reservoir was already permitted by way of a previous permit. With regard to the previous permit condition stating that no future extensions may be entertained, the applicant argued that any restriction imposed through a condition in a development permit may always be varied and changed through a subsequent application. On his part, the case officer reiterated that "curtilage" is defined as "a physical boundary wall which defines the curtilage of the same livestock farm unit", adding that the land in which the stables were to be located is not regarded as part of a livestock farm unit. In its assessment, the tribunal observed that the area over which the stables were to be located was indeed "committed" by way of a previous planning application, whereby a reservoir was permitted above soil level. Moreover, the tribunal concluded that the scale and design of the proposed dwelling extensions were not considered to be visually dominating while the proposed dwelling area did not exceed 150 square metres in terms of footprint (as required by policy PLP 20). Against this background, the tribunal ordered the MEPA to issue the permit. Robert Musumeci is a warranted architect and civil engineer. He also holds a degree in law A condition in a previous permit may always be varied through a subsequent application The court pointed out that if the husband leaves the matrimonial home, but keeps the keys, this does not mean that he is residing in the matrimonial home Robert Musumeci MEPAwatch Tribunal issues permit for extension and stables Court allows divorce irrespective of claims of non-payment of maintenance