Issue link: https://maltatoday.uberflip.com/i/630594
48 maltatoday, SUNDAY, 24 JANUARY 2016 Opinion T he Civil Court (Family Section) held that a wife who had left her family on the pretence that she was going to Ethiopia for a holiday, but never returned, was responsible for the breakup of the marriage and this should be ref lected in the separation conditions. The judgement was delivered by Ms Justice Abigail Lofaro on 20 January, 2016 in AB -v- Dr Yana Micallef Stafrace and PL Nadine Farrugia. The husband AB in his application explained that he married his wife CD at the Public Registry in December 2006 and after they were married for five years, the wife applied for Maltese citizenship, which she obtained. In January 2014 she left for her country, Ethiopia, for a holiday. Once she left she made it clear that she would not be returning. The husband tried to convince her to come back, but she disconnected her phone and removed her Facebook account and the husband has no idea where his wife was. The husband asked the court to grant him a separation. Ms Justice Lofaro pointed out that no statement of defence was presented, since the wife's curators had not been contacted by their client. The Court analysed the evidence brought before it, namely the husband's affidavit. The husband explained that in 2004 he met his wife in Ethiopia and made arrangements for her to obtain a visa to travel to Malta. He sent money to help her out financially and in September 2005, she was his mother's guest at home. In December 2006 they married. In the beginning of their marriage they lived with his mother until they bought an apartment in Sliema. The husband held that he had a normal occupation, working as a grocer and his wife helped out. He further explained that she had gone back to her country a minimum of three times and always returned. However, following the trip of January 2014, there was one phone call, where she asked for money, which he refused. With regard to the assets, the husband explained that in 2007 he inherited his father's grocery. He was also assigned an apartment in Sliema and shares and money. He had around €70,000 in savings before getting married. The couple had an account with €160 and had purchased an apartment in Sliema which cost €139,762. This was financed from saving before marriage and money he had inherited. He had given his wife €5,000 to go to Ethiopia. This affidavit was never contested nor challenged. The court examined the documentary evidence, which included the purchase contract of the matrimonial home and copies of transfers of money. A neighbour of the grocer testified on oath that he knew that the grocery was in the husband's hands before he got married. According to Article 41 of the Civil Code: "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." According to the evidence the wife left Malta in January 2014, but did not return by May 2014. The court case was filed in March 2015, therefore not two years after. The situation to date has remained the same and therefore, the time limit has passed. The court had no evidence to show that she left for a valid reason. With regard to the division of the assets of the community of acquests, according to the husband there is an account with €160 and an apartment in Sliema. The court ordered that the account be divided equally. With regard to the apartment, the property was purchased with funds he received from his inheritance and funds he held before marriage. Again the court commented that these facts are uncontested and nobody challenged this version. The Court then ordered that the apartment be sold, valued at €180,000, from which the husband is to keep the purchase price and €5,000, he had passed on to his wife. The difference is to be split equally between the spouses. Regarding the responsibility of the breakup of the marriage, the court 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" The Court concluded that from the evidence he had seen in the acts of the case, it was the wife who should shoulder the responsibility. Ms Justice Lofaro then moved to grant the separation Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Wife responsible for breakup of marriage following a one-way trip A planning application entitled "Enlargement of a washroom" overlying a multi-storey residential developemnt in St Dominic Street, Valletta was turned down by the MEPA's Planning Commission after it found that "the proposed development runs counter to Structure Plan policy UCO10 in that it would adversely affect views of the Urban Conservation Area and detract from the traditional urban skyline". In addition, the Commission observed that the washroom would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas and so does not comply with Structure Plan policy UCO6. As a final point, the Commission highlighted that the "proposed development would affect the roofscape, skyline and views towards the area, running counter to Grand Harbour Local Plan policy GV15.'' Applicant appealed the decision. In his statement of appeal, applicant observed that the proposal entailed the enlargement of a roof structure covering an area of 2.6 square metres to 11 square metres. Applicant explained that the current roof structure essentially consists of a 'garigor' (masonry spiral staircase). The scope of the application was precisely to create a covered space around the said 'garigor'. But even so, applicant argued that "the property in question is a modest multi-storey house, dwarfed by the lower Barrakka government f lats across the road, with an "illogical" layout consisting in various small rooms giving off the staircase landings, a main f loor consisting of two rooms at third f loor level and a 'garigor' leading up through a further two f loors to a small roof." In order to support his arguments, applicant submitted a photo montage taken from a nearby building and which, according to him, demonstrates "that the impact is practically non-existent and in line with similar washrooms, which are substantially larger, both to the left and to the right of the property". In addition, applicant remarked that the Superintendent of Cultural Heritage gave his green light to the proposal. In its assessment, the Tribunal made express reference to policy GV 15 (of the Local Plan) which regulates height limitations in Valletta. Indeed, the said policy GV15 provides that "in the consideration of applications which include changes to existing building heights in Valletta, the Planning Authority will adopt a f lexible approach which inter alia takes account of the streetscape through a consideration of the buildings on the same facade and those on facades on the opposite side of the street/s concerned as well as the general massing of the buildings and roofscape". The Tribunal assessed that the proposed extension complements the existing massing and thus ordered the Authority to issue the relative permit. Robert Musumeci MEPAwatch Flexible approach for Valletta building heights "Impact is practically non- existent and in line with similar washrooms" YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt