X vs Y

Court of Appeal

Chief Justice Vincent Degaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

21 March

This was an appeal against a judgement delivered by the Court of Magistrates, Superior Jurisdiction, (Family) last year. The latter court had rejected the pleas of the plaintiff who requested the court to declare her marriage to the defendant null on the basis of alleged simulation, a serious defect of discretion of judgement and a serious psychological anomaly on the part of the defendant.

The parties were married in 1980 and never had children.

The plaintiff demanded that the marriage be declared null on the basis of the following:

• Her husband had entered the marriage giving his consent that was 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;

• The defendant’s consent 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 that made it impossible for him to fulfil the essential obligations of marriage.

The defendant claimed that it was not his consent that was vitiated in the manner alleged. He said that if there were any grounds for annulment at all, it was the plaintiff’s consent that was vitiated and not his own.

The defendant never witnessed and hence the court never had the opportunity to examine his version. The court felt, however, it was sufficient to check whether any of the grounds mentioned by the plaintiff were well founded and could render the marriage null in terms of the Marriage Act (Chapter 255, Laws of Malta)

The parties took a long time to start trying for children and initially the plaintiff’s husband claimed that they had too many expenses.

When he finally agreed to start trying for a child, it never happened. After a lot of pressure, he agreed to have tests done and it resulted that he had a very low sperm count which rendered it impossible for the plaintiff to become pregnant. However, the defendant refused to be subjected to medical treatment that could allow the couple to have children by artificial means.

As it happened, the plaintiff found out after the marriage that the defendant had a heart condition that he was born with. The defendant did not want to tackle this problem medically either. The plaintiff also alleged that her husband was having an affair.

According to the Court, none of these claims alone could justify the marriage being annulled.

The plaintiff alleged consent vitiated by the grounds mentioned in Article 19 (1) (d) and (f) of the Marriage Act. However, the proof produced in court could possibly have proven consent vitiated as described in sub-articles 19(1) (c) and (e) but these articles were not mentioned by plaintiff.

Hence, the Court of First Instance had no choice but to rule against the granting of an annulment of the marriage since the claimed vitiated consent was not adequately proven.

The plaintiff appealed against the above judgement, claiming that she had provided sufficient evidence to prove her husband’s consent was vitiated by virtue of Article 19(1) (d) and (f).

For there to be a consent vitiated in terms of sub-article (d), there must be a serious defect of discretion of judgment on the matrimonial life, or on its essential rights and duties, which involves an impediment that hinders the free contracting of marriage. It basically involves a situation where one lacks discretionary powers due to psychological factors that render the person incapable of sufficiently weighing up the nature of marriage or the essential rights and duties connected with it. Hence, this stops the person from consenting freely, and for a marriage to be valid, a person must possess a critical faculty and internal freedom of choice. At this point, the person need not be affected by a psychological anomaly in the medical/psychiatric sense.

The second part of Article 19(1)(d) then refers to another scenario, ie a serious psychological anomaly which made it impossible for a party to fulfil the essential obligations of marriage. It is important to note that the law states that the psychological anomaly must be serious and must make it impossible, not merely difficult, to fulfil marital obligations.

According to Article 19(1)(f), to claim consent as simulated, it must be proven that at the moment consent was given and not after consent was given, one of the parties must tender a consent vitiated by the positive exclusion of marriage itself (total simulation), or of any one or more of the essential elements of matrimonial life, or of the right to the conjugal act (partial simulation). Such a positive exclusion can be mani-fested both expressly as well as implicitly.

The proof provided by the plaintiff was simply insufficient. It merely showed that the defendant had a low sperm count that hindered the couple from being able to have children. This was revealed after trying to have a child for 12-13 years.

It seemed likely that that the defendant was quite aware of his heart condition prior to the marriage, yet refrained from telling the plaintiff. This could potentially have been very good evidence to back up an annulment claim under Article 19(1) (c) which states that a marriage shall be void:

(c) if the consent of either of the parties is extorted by fraud about some quality of the other party which could of its nature seriously disrupt matrimonial life;

However, the plaintiff failed to consider such sub-article.

The Court therefore confirmed the judgement of the Court of First Instance and rejected the annulment of the marriage in question.