Issue link: https://maltatoday.uberflip.com/i/611961
48 maltatoday, SUNDAY, 6 DECEMBER 2015 48 Opinion T he Civil Court, Family Section ruled on a separation and divorce in one judgement. This was decided on 1 December, 2015 in AB -v- Avukat Dottor Joseph Ellis and LP Victor Bugeja. In his application the husband held that he had got married to CDE in 2005 in the Valletta public registry. They had no children, and their marriage irretrievably broke down after the wife abandoned the matrimonial home, when she returned to Russia and the husband never heard of her again. He asked the court to declare them both separated and divorced. The curators held that they did not know any of the facts. Ms Justice Abigail Lofaro analysed the little evidence produced in this case. The husband presented an affidavit, where he explained that he met his wife at a bar in Paceville, when she was on holiday. She returned to Russia and they kept in touch. He bought her tickets to come to Malta and two month visas were given to her. They rented a f lat at St Paul's Bay. On one occasion the defendant was given a visa for only nine weeks and from there they got married. In 2007, the plaintiff returned home from work and found that she had taken all her possessions and left Malta. This affidavit was the only evidence produced, apart from the immigration office, who confirmed that the wife did not return to Malta since 2007, unless she entered though another Schengen zone. The Court then quoted Article 41 of the Civil Code which reads: "Either of the spouses may also demand separation if, for two years or more, he or she shall have been deserted by the other, without good grounds." From the affidavit presented the wife failed to return to the matrimonial home and this has not been contradicted in any form and the wife failed to produce any evidence showing that she left the matrimonial home for legitimate reasons. The Court then quoted Article 48 of the Civil Code: "48. (1) The spouse who shall have given cause to the separation on any of the grounds referred to in articles 38 and 41, shall forfeit - (a) the rights established in articles 631, 633, 825, 826 and 827 of this Code; (b) the things which he or she may have acquired from the other spouse by a donation in contemplation of marriage, or during marriage, or under any other gratuitous title; (c) any right which he or she may have to one moiety of the acquests which may have been made by the industry chief ly of the other spouse after a date to be established by the court as corresponding to the date when the spouse is to be considered as having given sufficient cause to the separation. For the purposes of this paragraph in order to determine whether an acquest has been made by the industry chief ly of one party, regard shall be had to the contributions in any form of both spouses in accordance with article 3 of this Code; (d) the right to compel, under any circumstances, the other spouse to supply maintenance to him or her in virtue of the obligation arising from marriage." Article 51 of the same Code: "51. Where separation is granted on any of the grounds mentioned in article 40, it may produce any of the effects mentioned in article 48, if the court, having regard to the circumstances of the case, deems it proper to apply the provisions of that article, in whole or in part." From the evidence produced the Court concluded that the separation was attributed to the wife's action, by abandoning the matrimonial home. As regards the divorce, the parties were separated de facto since April 2007. On the issue of maintenance the wife made no request for maintenance and there seems to be no chance of reconciliation. Since the wife was responsible for the separation, one of the penalties is that she foregoes maintenance. Furthermore, there was no evidence that the community of acquests possessed any assets and therefore, there was nothing to divide. The Court then moved to declare the pair separated and divorced. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates T he MEPA's Environment and Planning Commission approved a planning application which was submitted by SK Victoria Wanderers, contemplating the construction of "a public belvedere at road level underlying a football club". Following permit approval, a neighbour filed an appeal before the Environment and Planning Tribunal, requesting the revocation of the permit. In his detailed submissions, the objector highlighted that the applicant failed to demonstrate that the relative consent from the property owner, in this case the Government Property Division, was obtained at the outset of the application as required by law. Moreover, the objector alleged that the applicant failed to furnish a fire safety report even though the proposed development concerned a public property. The objector went on to state that the approved drawings feature two kitchens and yet fail to provide for any "assembly points" in case of a fire emergency. It was also observed that the proposal fails to meet the "Access for All" requirements as well as the pertinent Public Health Regulations. The objector concluded by saying that the proposed elevations are out of synch with the surrounding urban context. On his part, applicant reacted by stating that the owner, in this case the Government Property Division, was made aware of the proposal during the application process. Furthermore, the applicant submitted documentation attesting that the "possession" of the property was transferred to SK Victoria Wanderers by way of a public deed. More so, the applicant pointed out that the land in question is expressly designated for "sports facilities" according to the Local Plan. With regard to the absence of a "fire safety report", the applicant stated that such a report is not required "ad validitatem" (as a condition of validity). Having said that, the applicant maintained that he was willing to submit such a report should the Tribunal so decide. In addition, the applicant underlined that he had obtained the relative consent from the Public Health Department. In conclusion, the applicant reminded the Tribunal that all works need to be in line with Access for All regulations and any allegations to the contrary are thus unfounded. In its assessment the Tribunal held against the objector and concluded that the permit should remain valid. The Tribunal observed inter alia that the applicant had notified the relative owner, in this case the Government Property Division, prior to the Commission's decision. In addition, the Tribunal said that the proposal was in line with the relative policy which expressly provides for "the consolidation of this central part of Rabat for the possible location of limited public social and community facilities and to enhance public access to these sites and centralise such land uses". With regard to the absence of a "fire safety report", the Tribunal noted that the appellant failed to pinpoint a legal provision which refers to such a requirement. Following the Tribunal's decision, the objector went on to lodge an appeal before the Civil Court of Appeal (Inferior Jurisdiction) alleging that the decision was "defective" on a point of law. The objector reiterated that the decision went against external recommendations. Nevertheless, the Court reacted, stating that disputes associated with "ownership issues" are to be dealt independently from the "planning domain". The Court also observed that planning decision organs are not bound to follow any of the recommendations made by external consultees during the application process – although, there is nothing in this case to suggest that the permit is in conflict with any of the recommendations. Against this background, the Court held that the Tribunal's decision is valid. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Separation and divorce authorised simultaneously Robert Musumeci MEPAwatch Either of the spouses may demand separation if, for two years or more, he or she shall have been deserted by the other, without good grounds Court: planning organs not bound by external recommendations Malcolm Mifsud mmifsud@mifsudadvocates.com.mt Separation and divorce authorised simultaneously mmifsud@mifsudadvocates.com.mt Separation and divorce authorised simultaneously Separation and divorce authorised simultaneously