Issue link: https://maltatoday.uberflip.com/i/598356
52 maltatoday, SUNDAY, 8 NOVEMBER 2015 Opinion T he Civil Court (Family Jurisdiction) presided by Mr Justice Robert G. Mangion decided in a judgment handed down last 29 October that a civil marriage does not impose an obligation on the parties to have children. The couple wed on 1 July, 2000 and separated by means of a contract dated 24 February, 2012. The husband filed a case and requested the Court to declare the marriage null on the following four pleas: the consent of either of the parties was extorted by moral violence, or fear; the consent of either of the parties was extorted by fraud about some quality of the other party which could of its nature seriously disrupt matrimonial life; the consent of either of the parties was vitiated by a serious defect of discretion of judgment on the matrimonial life, or on its essential rights and duties, or by a serious psychological anomaly which made it impossible for that party to fulfil the essential obligations of marriage. The defendant replied to the application of her ex-husband and stated that whilst she would not object to the marriage being annulled such annulment should be procured on the fault of the plaintiff. The plaintiff, whilst testif ying on oath, stated that he and the defendant were in a committed relationship for a period of three years before they got married. He explained that the relationship with the defendant's family was a sour one. In his testimony he also stated that after they decided to get married the defendant fell pregnant and the relationship with the relatives of the defendant continued to worsen as they did not want the defendant in their home while pregnant. The plaintiff continued by saying that his decision to get married was based on the fact that he wanted to protect the defendant because she was pregnant. He did not want his child to be born out of wedlock and he wanted to make sure that his child was not brought up by the defendant's parents. Furthermore, he explained that before he got married he always told the defendant that he did not want to have children and expressed the same intention on several occasions during the course of their marriage. The testimony of the defendant was compatible with that of the plaintiff, apart from one fact: she did not recall the plaintiff stating that he did not want any children. The Court in its considerations examined every plea separately and cited a number of Court judgments. With regard to the first plea the Court held that being afraid of relatives who did not approve of children being born out of wedlock did not constitute fear in the eyes of the law. On the second plea the Court held that the fraud which needs to be proved in such cases is not that which resulted during marriage but which resulted at the moment the consent to get married was given. The fact that the plaintiff had an affair with another woman during marriage does not constitute fraud but constitutes adultery, which is a ground for personal separation and not for annulment. The Court held that it would have been relevant if it resulted that the plaintiff had an affair with another woman before they got married and wanted to continue such affair even during marriage. With regard to the third plea the Court, after citing a number of judgments, noted that the plaintiff held that his ex-wife did not have the opportunity to meet new people as their relationship had started when she was still 17 years old. He also stated that they got married as they had no other alternative in the circumstances. The Court however considered that none of these reasons amounted to a serious defect of discretion of judgment on the matrimonial life. With reference to the final plea the plaintiff insisted that his consent excluded an essential element of marriage as he never intended to have children. The Court compared the case in hand with circumstances whereby a party contracts marriage with the intention of not having children and such fact arises during marriage. This would amount to fraud. In this case however plaintiff admitted that from the very beginning he always told the defendant that he did not want to have children. Therefore the Court concluded that a civil marriage celebrated in terms of Chapter 255 of the Laws of Malta is not null on the pretext that the parties decide not to have children before contracting marriage. The Court explained that such declaration only applies to a civil marriage and cannot be interpreted to apply in a Catholic marriage. Today this principle applies even further as a civil marriage can be dissolved by means of divorce whilst a Catholic marriage cannot be so dissolved. Joseph Mizzi, Partner, Mifsud & Mifsud Advocates Joseph Mizzi jmizzi@mifsudadvocates.com.mt jmizzi@mifsudadvocates.com.mt A planning application contemplating the conversion of a showroom into a gymnasium was turned down by the Environment and Planning Commission after it held that "the proposed land use is not present or similar to other land uses within the area." The showroom is located within an area of containment where further development is regulated by Local Plan Policy SMCM 05. Furthermore, the Commission highlighted that "the proposal fails to provide the required car parking spaces, thus giving rise to unacceptable additional on-street car parking which would not be in the interests of the amenity of the area and which would exacerbate existing problems of congestion, potential highway danger and vehicular and pedestrian conf lict". In reaction, applicant appealed the decision before the Environment and Planning Tribunal, referring in his submissions to the Local Plan, which in turn provides that "a more suitable but compatible replacement activity to an existing one may be considered if it respects the uses contemplated in the relevant policies". In addition, the applicant argued that "a showroom in such location is neither ideal nor functional " since the showroom is, in this case, located along a very busy main road without a setback and not easily visible. Moreover, the applicant made express reference to two permits contemplating a variety of uses which were approved within areas of containment. The first permit relates to a large commercial complex comprising a supermarket, childcare centre, cafeteria, fitness centre, beauty centre and underground parking facilities. The second permit relates to a timber store forming part of a multi-storey industrial complex which was converted into a performing arts studio. For its part, the Authority stood firm with its decision, insisting that the area in question is not "sufficiently committed by existing or permitted buildings" in such manner as to justif y the proposed gymnasium. But even so, the Authority maintained that the supermarket permit, to which reference was made by the appellant, carried no resemblance since such permit was approved way before the "containment" policy came into force. In its assessment, the Tribunal made immediate reference to Local Plan Policy SMCM 05 regulating new uses within areas of containment. This policy provides inter alia that as a general rule, any proposed use must be similar to existing uses. Nonetheless, this same policy provides that when the proposed use is considered undesirable, "MEPA will consider a more acceptable alternative use." In the circumstances, the Tribunal concluded that the scale and nature of the proposed activity complements the main industrial/commercial activity. The Tribunal thus ordered the MEPA to issue the permit subject to a financial contribution towards the Urban Improvement Fund. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters degree in conservation and a law degree Gymnasium gets go-ahead inside 'area of containment' Agreement to not have children before marriage does not render a civil marriage null Robert Musumeci MEPAwatch A gymnasium complements commercial/ industrial activity The fraud that needs to be proved is that which resulted at the moment the consent to get married was given