Issue link: https://maltatoday.uberflip.com/i/758493
48 maltatoday, SUNDAY, 4 DECEMBER 2016 Opinion T he family section of the Civil Court held that an annulment of marriage is justified if it is proved that although the spouses did wed, their intention was not to bind themselves to the rights and obligations of marriage. This was decided on 29 November, 2016 in ABZ v EM by Ms Justice Abigail Lofaro. In her application ABZ explained that she was civilly married in 1990, however, her consent was given because of the lack of due discretion in terms of Art 19(1) (d) of the Marriage Act, the consent was also given because of an exclusion of one or more elements of marriage in terms of Article 19(1)(f) and due to violence in terms of Article 19(1)(1) of the Marriage Act. She asked the Court to declare her marriage null and void. The defendant failed to present a statement of defence. Ms Justice Lofaro examined the evidence produced, where it transpired that the wife had met her future husband shortly after the death of her first husband, from whom she had a child. In the same period her father died and she had financial problems. As a result she was suffering from depression. One day when she visited her mother, she found the defendant at the house. At that time, she had no intention to date but her mother insisted that she should date him since it would solve her financial problems. The plaintiff gave in, and shortly after they married. The defendant became aggressive from the start of the marriage and told his wife that he married her because he pitied her and because he wanted to free himself of his mother. Problems escalated until shortly afterwards he left the matrimonial home. The defendant testified that he comes from a large family and he had worked since he was 17 years old. His mother expected him to hand over all his earnings. He agreed with the plaintiff that she was suffering from depression and that her mother was pressuring her to marry. He accepted to marry, although he courted her for a short time. He also confirmed that there were problems in the matrimonial home. The Court then examined the legal issues and quoted Article 19 of the Marriage Act: "19. (1) In addition to the cases in which a marriage is void in accordance with any other provision of this Act, a marriage shall be void: (a) if the consent of either of the parties is extorted by violence, whether physical or moral, or fear; (d) if the consent of either of the parties is 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 makes it impossible for that party to fulfil the essential obligations of marriage; (f) if the consent of either of the parties is vitiated by the positive exclusion of marriage itself, or of any one or more of the essential elements of matrimonial life, or of the right to the conjugal act;" With regard to Article 19(1)(a), the Court had to examine whether the pressure put on the spouses amounted to violence. The Court quoted from various judgements, such as Shirley Anne Al Bueski -v- Dr Alfred Mifsud noe decided on 22 November, 1982 which held that fear must be certain and of a serious nature, which should be distinguished from being a question of shyness or a frivolity in giving consent. In Denis Borg -v- Christopher Borg, the First Hall of the Civil Courts on 21 October, 2002, held that fear is not relevance towards the parents, unless violence is used. The fear must be real and grave in nature, which does not allow a free consent. Then the Court moved on to paragraph d of Article 19(1) of the Marriage Act, in that the Court investigated whether there was a lack of discretion. The legislator did not intend that this translates into a mere lack of maturity. The Court commented that if the legislator wanted spouses to be fully mature, then few marriages would be valid! A valid marriage would take place when the spouses are aware of their rights and obligations as a married couple and their maturity would allow them to understand all this. The Court quoted Viladrich, who wrote: "Thus there is grave lack of discretion of judgement when it is proven that a contracting party lacks intellectual and volitional maturity necessary to discern, in view of binding oneself in an irrevocable manner, the essential rights and duties of marriage, which are the object of mutual surrender and acceptance." The Court moved to the last ground, that of Article 19(1)(f), which refers to the simulation of marriage. The Court quoted from Alfred Tonna -v- Maria Tonna of 31 January, 1996, which stated that simulation takes place when externally the spouses would be giving their consent to marriage, but internally, the spouses would be rejecting the consent of marriage or else exclude an element of marriage. On the latter, the Court said it may exclude a prior certain obligation essential for married life. There is a difference between a failed marriage caused during marriage and a failed marriage because of decisions taken after marriage is celebrated. In this particular case, although the plaintiff 's situation pressed them to get married, this cannot be a cause of annulment, because both decided to marry each other. The court held that although both parties knew what they were doing, this was a marriage of convenience. The wife married purely to solve her financial problems, while the husband married to get rid of his mother. This amounts to simulation. The Court then moved to declare the marriage null and void under Article 19(1)(f) of the Marriage Act. Av. Malcolm Mifsud, partner, Mifsud & Mifsud Advocates A full development planning permission to construct a complex of apartments in Xemxija was initially approved by the Malta Environment and Planning Authority (the MEPA) notwithstanding a number of strong objections. The Authority had held that the applicant was already in possession of an outline permission, on the basis of which it proceeded to issue the full permit. In the wake of the Authority's decision, the objectors lodged an appeal before the Environment and Planning Tribunal, stating that the permit should be revoked. To substantiate their arguments, the objectors insisted that the outline permit was expired on the date of the second decision. Moreover, the objectors alleged that the original drawings were misleading and fraudulent, so much so that the profile shown in the full application was different from the one shown in the outline drawings. The objectors therefore contended that the full development application should have never been approved, notwithstanding that the site profile was amended to ref lect the real situation. The objectors argued that the applicant's permit showed five habitable f loors despite only a maximum of two habitable f loors from the lower street should be allowed in villa areas. According to the objectors, the proposal went counter to Policy NWUS 4 of the North West Local Plan which among other things states 'that the villa area at Tal-Fjuri is quite separate from the main urban fabric mainly due to two physical characteristics, its prominent location on a hillside and the arterial road'. Concluding, it was highlighted that new structures should fit within the overall context of the Residential Priority Area. In its assessment, the Tribunal had concluded that the Authority was wrong to approve the full development application since the previous outline permit had expired. The Tribunal maintained that it was mainly concerned with the Authority taking a decision based on an expired outline permit. Concluding, it reasoned that the Authority had acted beyond its powers in granting the full development permit. Following the Tribunal's decision, the applicant went straight to the Court of Appeal, insisting that the validity of the previous permits was never the subject of the dispute before the Tribunal. On its part, the Court reacted by stating that the Tribunal was indeed obliged to investigate whether the outline permit was still valid on the date of the second decision, adding that 'validity concerns' are a matter of public order. Having said that, the Court concluded that, in its decision, the Tribunal may not raise an issue unless the parties were given adequate opportunity to express their views. Against this background, the Court annulled the Tribunal's decision and ordered the Tribunal to revisit the case. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Xemxija refusal – Court orders reassessment Robert Musumeci Tribunal may not raise an issue unless the parties were given adequate opportunity to express their views Court rules marriage was one of convenience Malcolm Mifsud mmifsud@mifsudadvocates.com.mt