1 
 
 
CIVIL COURT – FAMILY SECTION  
 
Madam Justice  
 
Onor. Abigail Lofaro LL.D., Dip. Stud. Rel. , 
 Mag. Jur. (Eur. Law)  
 
Today  31st May, 2016  
 
 
Application Number  :  27/15  AL 
 
 
AB 
 
-vs- 
 
CB 
 
The Court,  
 
Having seen t he application  by virtue of which plaintiff premised : 
 
1) That the parties got married in Chesterfield, in England, on 
the 18 October 1990 and from this marriage no children 
were born;  
2) That the plaintiff was duly authorized to file these 
proceedings by virtue  of a court decree delivered in th is 
sense by this Honourable Court on the 19th December 2014 
(Document ‘A’);  
3) That the parties started experiencing problems a number of 
years ago which stemmed from a lack of communication 
which was in turn linked – to a ce rtain extent – to the 
considerable age -gap between them.  Defendant, who is 
 2 twelve years younger than plaintiff, became increasingly 
disinterested in plaintiff and instead dedicated herself 
exclusively to new pursuits which her husband was not a 
part of;  
4) That the lack of communication brought on a lack of intimacy 
and eventually the combination of all these factors brought 
on irreconcilable differences which the parties were unable 
to address;  
5) That plaintiff began to realize that his wife had grown 
increasi ngly cold and eventually began to suspect that his 
wife was being unfaithful .  His suspicions were unfortunately 
confirmed and defendant is now living with her partner in the 
parties’ matrimonial home at 12, ‘Lees Crescent’, Whitwick, 
Leicester LE67 5GS, U nited Kingdom, which was bought by 
the parties during their marriage, and that she has been so 
cohabiting for around a year;  
6) That unfortunately, all attempts to resolve the differences 
between them amicably have failed, and plaintiff was forced 
to initiate  these proceedings;  
 
The plaintiff  for the reasons above mentioned request s that this 
Honorable Court:     
 
i) Declare s and pronounce s personal separation between the 
parties for causes attributable to defendant and for purposes 
of Section 48 (c) of the Civil Code (Chapter 16) establishes 
the date on which defendant should be considered as being 
responsible for the separation;  
ii) Authorize s the plaintiff to live separately from defendant his 
wife; 
iii) Condemn s defendant to pay the plaintiff her husband, such 
just and adequate maintenance allowance which will be 
established by the Court, having regard to defendant’s 
means and the needs of plaintiff, payable by defendant to 
plaintiff his wife, weekly or monthly as may be ordered by the 
Court, or if such appears fit to th e Court, orders defendant to 
pay plaintiff, in lieu of such maintenance or part thereof, a 
capital sum which in the Court’s belief suffices to enable 
plaintiff to be financially independent or less dependent on 
defendant;  
 3  
iv) Apply against defendant, in whole  or in part, the provisions 
of Section 48 of the Civil Code (Chapter 16);  
v) Condemns defendant to consign unto plaintiff all plaintiff’s 
dotal and paraphernal property and separately orders that 
plaintiff receives the full administration of the paraphernal 
property;  
vi) Liquidates paraphernal credits or particular estate of the 
plaintiff and qualifies such credits held by the said plaintiff 
against the community of acquests appertaining to the 
parties and payable to him by the said community;  
vii) Declares dissolves t he community of acquests existent 
between the parties, liquidates the said community and 
orders that same objects which form part of the community 
of acquests be divided  into two portions composed  as may 
be ordered and established by this Court, regard bei ng had, 
inter alia, to date of acquisition of the various moveable and 
immoveable objects forming the said community and the 
date established by the Court as being the date on which 
defendant is to be considered as having been responsible 
for the separatio n, which portions shall be assigned to the 
plaintiff and to the defendant, if needs be for purposes of this 
demand, an expert be appointed to effect the liquidation 
demanded and to propose a plan of division, a Notary to 
receive the relative deed and a cur ator to represent the 
eventual default of defendant on the said deed;  
viii) Orders that the matrimonial home namely the property 
12, Lees Crescent, Whitwick, Leicester LE67 5GS, United 
Kingdom to be sold and that the proceeds be divided in 
equal portions among t he parties;  
ix) Authoris es plaintiff to register in the public registry the 
judgment eventually delivered by this court;  
 
With costs, comprising those incurred in the mediation 
proceedings against defendant who is hereby summoned to reply;  
 
Having seen plainti ff’s list of witnesses;  
 
Having seen the note of defendant , where by she submits under 
oath:  
 4  
I. By means of this reply, the respondent takes herself as 
notified with the proceedings;  
II. The plaintiff had abandoned the matrimonial home three (3) 
years ago and the  exact date that he abandoned the 
matrimonial home was the twenty eight (28th) May two 
thousand and twelve (2012);  
III. The plaintiff had started a relationship with another woman 
and this will be proved in the course of the proceedings;  
IV. That the relationship b etween the parties deteriorated and 
this solely attributed to the plaintiff as will be proved during 
the proceedings of the case;  
V. That the defendant already instituted proceedings for divorce 
and the liquidation of assets before the Coventry Court and 
these proceedings were filed on the fourth (4th) of February 
of the current year (2015);  
VI. That the property which is situated in the United Kingdom, at 
number 12, ‘Lees Crescent’ Whitwick, Leicester LE 67 is 
registered in both names however there is an amount w hich 
was given by the defendant’s mother which is registered in 
the Land Registry Certificate of the property as will be 
proved during the case;  
VII. That plaintiff already took all his belongings from the 
matrimonial home contrary to what he declared on oath i n 
his application;  
Therefore, in view of the submissions presented above, the 
respondent humbly asks  the court to reject all requests made 
by applicant and:  
1. Stay proceedings since the divorce proceedings have been 
instituted in the United Kingdom before th ey were filed in 
Malta;  
2. Stay proceedings since the assets of the parties are in the 
United Kingdom and mainly the immovable property is 
situated there and therefore the British Courts will be in a 
better position to decide and they have jurisdiction over t he 
said immoveable property;  
3. In the eventuality that the court does not uphold the first two 
requests of the defendant, it is requested that it applies 
against the plaintiff in whole or in part, the provisions of 
Section 48 of the Civil Code (Chapter 16);  
 5 4. Reject all other requests made by the applicant especially 
but not limited to (vii) (viii) (ix) since these requirements 
cannot be entertained by the Maltese Courts since these do 
not have jurisdiction on property situated abroad;  
 
Save other pleas permitt ed by law;  
 
With costs against the plaintiff who is hereby already summoned in 
submission;  
 
Having seen defendant’s list of witnesses;  
 
Having seen all the documents which were exhibited, all the 
evidence which was submitted and the acts of the proceedings ; 
 
Having seen the parties’ notes of submissions regarding 
defendant’s first preliminary plea regarding this Court’s jurisdiction 
or lack of it;  
 
Having seen that the case was put off to today for a preliminary 
judgement regarding this first plea;  
 
Conside rs: 
 
 
That p laintiff has lodged an action in front of this court so that the 
Court de clare s and pronounce s the personal separation between 
the parties. However defendant in her reply has requested the 
court to stay proceedings since divorce proceedings had  already 
been filed in in the United Kingdom and to stay proceedings since  
the assets of the parties are situated in the United Kingdom , 
stating that this court does not have jurisdiction over property 
situated within the said country.  
 
The co urt is makin g reference to its note verbale dated 23 of 
February 2016, where the case has been put off for today, for a 
judgement  to be delivered on the respondent’s plea of lack of 
jurisdiction.  
 6  
The Facts at issue  
 
The plaintiff has testified by means of an affidavi t1 where he stated 
that he has been living in Malta for the past five years with his 
partner , whom he also met in Malta. He says that he holds a 
Maltese Identity Card and he has a Residence Documentation 
Certificate, he also is an active member within the community of St 
Paul’s Anglican Cathedral in Valletta. He says that he has ties with 
Malta and has no intention of re -settling in England and intends to 
continue residing in Malta.  
 
It also results from the document s presented that the plaintiff  filed 
a letter to start mediation proceedings within the Civil Court, 
Family Section on the 18th of December 20142. This court case 
was filed by the plaintiff on the 6th of February of 2015.  
 
On the other hand , defendant filed a case in The Family Court of 
Coventry , United Kingdom asking  the court to grant her a divorce 
in respect to her marriage with the plaintiff. This case has been 
filed on the 4th of February of 2015.  
 
Considerations of the Court  
 
The defendant did not, at any point during the proceedings , 
contest the habitual residence of the plaintiff, not even in the 
sworn application filed by her. In her sworn application , defendant 
says that this Court should, “ stay proceedings since the divorce 
proceedings have been instituted in the United Kingdom before 
they were filed in Malta; stay proceedings since the assets of the 
parties are in the United Kingdom and mainly the immovable 
property is situated there and therefore the British Courts will be in 
                                                 
1 Exhibited a fol 119 of the process and marked as document CB1  
2 Vide a copy of the letter a fol 7 of the process  
 7 a better position to decide and they have j urisdiction over  the said 
immov able property ”. 
 
Defendant has not even  contested by means of a cross 
examination the facts contained in the plaintiff’s affidavit, therefore 
the court is concluding that the plaintiff has in fact established his 
habitual residence in Malta.  
 
Only in the note of submissions does defendant quote Article 
3(1)(a) of EC2201/2003 but does not quote it fully. This article 
says the following:  
Article 3  
General jurisdiction  
1. In matters relating to divorce, legal separation or marriage 
annulment, ju risdiction shall lie with the courts of the 
Member State  
(a) in whose territory:  
- the spouses are habitually resident, or  
- the spouses were last habitually resident, insofar as one of 
them still resides there, or  
- the respondent is habitually resident, or 
- in the event of a joint application, either of the spouses is 
habitually resident, or  
- the applicant is habitually resident if he or she resided 
there for at least a year immediately before the application 
was made, or  
- the applicant is habitually r esident if he or she resided 
there for at least six months immediately before the 
application was made and is either a national of the Member 
State in question or, in the case of the United Kingdom and 
Ireland, has his or her "domicile" there;  
 8 It is clear that under this article , this court does have jurisdiction 
because the applicant, in this case the plaintiff , has resided in 
Malta for the past five years and continues to reside within the 
same country, as no proof to the contrary was brought by the  
defendant before  this court.  
However, the defendant stated that she has filed divorce 
proceedings first in the United Kingdom and according to Article 
19 of the EC Regulation 2201/2003 this court should stay 
proceedings.  
Article 19 of the EC Regulation 2201/2 003 states the following:  
Article 19  
Lis pendens and dependent actions  
1. Where proceedings relating to divorce, legal separation or 
marriage annulment between the same parties are brought 
before courts of different Member States, the court second 
seised s hall of its own motion stay its proceedings until such 
time as the jurisdiction of the court first seised is established.  
2. Where proceedings relating to parental responsibility 
relating to the same child and involving the same cause of 
action are brought  before courts of different Member States, 
the court second seised shall of its own motion stay its 
proceedings until such time as the jurisdiction of the court 
first seised is established.  
3. Where the jurisdiction of the court first seised is 
established , the court second seised shall decline 
jurisdiction in favour of that court.  
In that case, the party who brought the relevant action 
before the court second seised may bring that action before 
the court first seised.  
Then Article 16 of the same regulation  states the following;  
 9 Article 16  
Seising of a Court  
1. A court shall be deemed to be seised:  
(a) at the time when the document instituting the 
proceedings or an equivalent document is lodged with the 
court, provided that the applicant has not subsequently  
failed to take the steps he was required to take to have 
service effected on the respondent;  
or 
(b) if the document has to be served before being lodged 
with the court, at the time when it is received by the authority 
responsible for service, provided tha t the applicant has not 
subsequently failed to take the steps he was required to take 
to have the document lodged with the court.  
 
Plaintiff has filed mediation proceedings on the 18th of December 
2014 by means of a letter according to Regulation 4(3) of 
LN397/2003. The court ordered the mediation to be closed due to 
the circumstances of the case , given that the defendant is not 
present in Malta and ordered the plaintiff to confirm this fact which 
he did on the 29th of January 2015. Then the Plaintiff had t he 
authority to proceed with a court case according to Regulation 7 of 
LN397/2003 . The plaintiff was ordered  to notify defendant with the 
court case by means of the appointment of curators. Plaintiff 
knows defendant’s address and has since notified her in England. 
However, during the filing of mediation, there was no court order to 
notify the defendant , the order was in respect of the court case. In 
this regard , Plaintiff has acted correctly and has taken the 
necessary steps  to serve the defendant with the  proceedings.  
 
It is true that defendant has filed divorce proceedings in the U nited 
Kingdom  on the 4th of February of 2015 and plaintiff filed this court 
 10 case on the 6th of February of 2015, therefore it seems that the 
court first seised was the court  in the United Kingdom .  
 
However under Maltese Law, separation proceedings have to start 
by filing a letter in the registry to start the mediation process, which 
will precede contentious separation proceedings in court if an 
agreement is not reached  between b oth parties within a fixed time 
period. After the end of mediation proceedings and where an 
agreement has not been reached between both parties, either 
party may file a law suit for marital separation, if the law suit is not 
filed, then separation proceedi ngs are deemed to have been 
abandoned . However , if a law suit is filed within the specified time 
period as per regulation 7 of LN397/2003, th en the separation 
process is considered to be an ongoing one.  
 
The Court makes reference to the case quoted by the  plaintiff in 
his not of submissions which is ABC vs DE (73/2015) where the 
court stated the following:  
 
“Mill-qari tal -istess Artikolu, jidher car li din il -Qorti fil -vesti taghha 
giet meqjusa li ghandha pussess fil -mument li l -attrici intavolat l -
ittra t a’ medjazzjoni li permezz taghha bdiet il -proceduri ta’ 
separazzjoni. M’hemm ebda dubju li l -ittra tal -medjazzjoni giet 
intavolata nhar it -12 ta’ Frar 2015. Sussegwentement ghall -
imsemmija ittra, l -attrici (dejjem fit -terminu moghti lilha mil -ligi u 
cioe’ fi żmien xahrejn mid -data tad -digriet li permezz tieghu giet 
awtorizzata li tintavola l -kawza odjerna, mexxiet bl -istess kawza). 
Ghal finijiet ta’ kjarezza , jinghad li l -kawza odjerna giet intavolata 
nhar is -27 ta’ Marzu 2015, filwaqt li d -digriet li perme zz tieghu l -
attrici giet awtorizzata tintavola l -istess kawza kien datat it -13 ta’ 
Frar 2015.”  
The same can be said for this case. The request for the start 
of mediation proceedings was filed on the 18th of December 
2014 and within the time period of two m onths, according to 
 11 regulation 7 of LN 397/2003, the plaintiff filed the  court case 
for separation. Hence, the court case on its own cannot exist 
without the mediation  proceedings  and therefore this court 
considers the request for mediation proceedings as  the start 
of the said proceedings,  mediation  being a compulsory 
requirement for separation proceedings to take off according 
to regulation 4(3) of Legal Notice 397.  
Therefore, the first court seised is this court which is the Civil 
Court, Family Section a nd not the court within the United 
Kingdom,  and therefore this plea is being rejected.  
Defendant however mentions Article 24(1) of EC1215/2012 
which states the following:  
The following courts of a Member State shall have exclusive 
jurisdiction, regardless  of the domicile of the parties:  
 
(1) in proceedings which have as their object rights  in rem in 
immovable property or tenancies of immovable property, the 
courts of the Member State in which the property is situated.  
Whilst at face value it may seem that this  court has no jurisdiction 
over this case as it seems that the main asset of both parties is an 
immovable property in the United Kingdom  from a thorough 
reading of the same EC1215/2012, one can conclude that this 
regulation does not deal with separation an d other marital 
proceedings, such as those contained within EC2201/2003.  
 
In fact Article 7 of the same EC1215/2012 states the following:  
Article 7  
A person domiciled in a Member State may be sued in another 
Member State:  
(1) (a) in matters relating to a c ontract, in the courts for the place 
of performance of the obligation in question;  
 12 (b) for the purpose of this provision and unless otherwise 
agreed, the place of performance of the obligation in 
question shall be:  
— in the case of the sale of goods, the  place in a 
Member State where, under the contract, the goods 
were delivered or should have been delivered,  
— in the case of the provision of services, the place in a 
Member State where, under the contract, the services 
were provided or should have been provided;  
 
(c) if point (b) does not apply then point (a) applies;  
 
(2) in matters relating to tort, delict or quasi -delict, in the courts for 
the place where the harmful event occurred or may occur;  
(3) as regards a civil claim for damages or rest itution which is 
based on an act giving rise to criminal proceedings, in the 
court seised of those proceedings, to the extent that that court 
has jurisdiction under its own law to entertain civil proceedings;  
(4) as regards a civil claim for the recovery , based on ownership, 
of a cultural object as defined in point 1 of Article 1 of Directive 
93/7/EEC initiated by the person claiming the right to recover 
such an object, in the courts for the place where the cultural 
object is situated at the time when the  court is seised;  
(5) as regards a dispute arising out of the operations of a branch, 
agency or other establishment, in the courts for the place 
where the branch, agency or other establishment is situated;  
(6) as regards a dispute brought against a set tlor, trustee or 
beneficiary of a trust created by the operation of a statute, or 
by a written instrument, or created orally and evidenced in 
writing, in the courts of the Member State in which the trust is 
domiciled;  
 13 (7) as regards a dispute concerning the payment of remuneration 
claimed in respect of the salvage of a cargo or freight, in the 
court under the authority of which the cargo or freight in 
question:  
(a) has been arrested to secure such payment; or  
(b) could have been so arrested, but bail or  other security has 
been given;  
provided that this provision shall apply only if it is claimed that 
the defendant has an interest in the cargo or freight or had 
such an interest at the time of salvage.  
 
Therefore, one can easily conclude that EC1215/2012  deals with 
civil and commercial matters, listed specifically in the article 
hereabove mentioned, and it excludes marital and family law 
proceedings. Hence, EC1215/2012 is Regulation  (EU) 
No 1215/2012  of the European  Parliament  and of the Council  of 
12 December  2012  on jurisdiction  and the recognition  and 
enforcement  of judgments  in civil and commercial  matters  and EC 
2201/2003  is Council  Regulation  (EC) No 2201/2003  of 27 
November  2003  concerning  jurisdiction  and the recognition  and 
enforcement  of judgment s in matrimonial  matters  and the matters  
of parental  responsibility,  repealing  Regulation  (EC) No 
1347/2000 . These  two regulations  are distinct  lex specialis  which  
do not overlap  in any way or manner.  
Article 21 of E C2201/2003 is being quoted here :  
Articl e 21 
Recognition of a judgment  
1. A judgment given in a Member State shall be recognised 
in the other Member States without any special procedure 
being required.  
 14 2. In particular, and without prejudice to paragraph 3, no 
special procedure shall be required  for updating the civil -
status records of a Member State on the basis of a judgment 
relating to divorce, legal separation or marriage annulment 
given in another Member State, and against which no further 
appeal lies under the law of that Member State.  
3. W ithout prejudice to Section 4 of this Chapter, any 
interested party may, in accordance with the procedures 
provided for in Section 2 of this Chapter, apply for a decision 
that the judgment be or not be recognised.  
The local jurisdiction of the court appear ing in the list notified 
by each Member State to the Commission pursuant to 
Article 68 shall be determined by the internal law of the 
Member State in which proceedings for recognition or non -
recognition are brought.  
4. Where the recognition of a judgment i s raised as an 
incidental question in a court of a Member State, that court 
may determine that issue.  
 
Therefore  it is clear  that this court  can give a judgment  in this case  
even  though  the parties  may have  immovable  property  in the 
United  Kingdom , since,  as stated  in the above  mentioned  article,  a 
judgment  given  by the court  of a member  state  shall be recognized  
by another  member  state,  and therefore  this plea is also being  
rejected.  
 
Conclusion  
 
Hence, for the above reasons this cour t is rejecting defenda nt’s 
plea that this court does not have jurisdiction, and declares that 
this Court does have  jurisdiction to hear this case and to decide 
this action and orders the continuation of the case.  
 
 15 The costs of this judgement are to be paid by the defendant.