It is common knowledge in our fair isle that Adultery among us,both natives and aliens alike,is rampant.You find this attitude just about everywhere,in certain circumstances more explicit than elsewhere.I take it that all readers are aware of the meaning of Adultery,though basically this means that a couple,one of whom has to be legally married,are having a sexually-penitrative liason.

Infidelity,though basically interpreted as a synonym to Adultery,actually has a wider implication in that it incorporates couples who are in an intimate partnership,possibly cohabiting,one of whom [if not both of them] is equally having sexually-intimate affairs with another person,both of the opposite sex or of the same sex,though the latter interpretation is still questionable!

Hence it is correct to categorically emphasize that both Adultery and/or Infidelity are a widespread occurrence in our country:presumeably elsewhere,but the objective of this communication centres around spouse or partner support when the `victim` is legally obliged to pay maintenance and,as it is becoming habitual,make also good for a percentage [usually 50%]of expenses and fees disbursed by the party who may have care and custody of minor children,should there be issue from that couple`s intimate relations.

Since in Malta hitherto we do not legally enforce the principle of `common law` husband / wife, a legal concept which we should seriously consider to integrate into our legislation, it follows that if two partners or cohabitants discover that the other side is cheating,then either could opt to sever the relationship without much legal ado.If they have common minor children between them,then should they disagree,it will be possible for the Family Court,following an application to that effect,to determine the issue relating to the supreme interests of such minors.

The situation differs considerably between a legally-married couple where there is circumstantial evidence or well-founded grounds to conclude that adultery has been effected or there is outright evidence that one of the conjugal parties or in a number of cases both of the contending spouses have committed adultery.

Adultery is one of the legal grounds relating to which,if proven,legal separation is granted and the offending spouse forfeits the right to maintenance as from the moment adultery results.Here a number of issues arise.

Can the Family Court before the eventual judgement is delivered [ and in our system only Divinity can determine that moment!] order the forfeiture of maintenance on the offending spouse ? Currently this issue is mainly of importance to those married women accused of adultery but who are not earning an income,nor do they have independent financial means and depend exclusively on the community of acquests for their subsistence.

There is no easy reply to this query:the law clearly implies that as from the moment adultery results,the adulteress forfeits the right to be maintained by the other spouse,but how is this enforced in practice without too much prejudice and damages being caused to the aggrieved party?

What if the Court years after the adultery has occurred judgementally concludes that adultery did indeed result, will the aggrieved party [or his heirs] be entitled to be paid back the whole amount of money {plus legal interest} that would have been disbursed to the undeserving party,adding therto the fees and expenses,judicial and extra-judicial,plus any other related damages that would have been unjustifiably incurred ? And how will moral or psychological damages be calculated considering that our law appears to ignore completely such an important assessment in the evaluation of one`s lifestyle in an irretrievably broken marriage or relationship?

What may appear an obvious reply to the lay reader takes on very different hues before the competent legal authority:a Court may reason out that on legally-justifiable grounds,say psychologically humanitarian reasons,maintenance paid out will not be reimbursed.We had cases where adultery resulted even before the date the adulteress herself filed the separation lawsuit and where husbands were actually sent to prison for refusing to pay maintenance to an adulterous wife because of a pending Court decree ordering such husband to pay maintenance to such women:clearly a case of no gender equality here!

We have had cases where minor siblings were actually separated with the boy being placed in his father`s care and custody and the younger sister being placed in the care and custody of an adulterous mum still cohabiting with her drug- addicted partner.In such a latter case,the husband was ordered to pay an amount of maintenance per week for his daughter to her adulterous mother wherein it was clear that what the mother did not obtain directly,she just the same got it through her daughter.Though no doubt this could not have been the Court`s intention,just the same the Court appears to have been misled to determine an unjust decision!

To make matters worse,in the same case,the adulterous wife resided in the presence of her minor daughter with her drug-addicted partner,while the husband after living on his own with his minor son for a number of years in the conjugal home, was actually ordered by the Court to put the conjugal home up for sale,as if it did not matter where the father and son would subsequently reside! The adulterous mother indeed obtained a number of other benefits,leading one to conclude that adultery rather than castigated was being glorified and rewarded by none other than a competent Court authority in an official Court judgement.

Hence how we must sometime learn that it is almost imperative that irrespective what the heart states at a time when contemplating marriage,if one feels that marriage has to be undertaken,then let there be insistence on a Marriage Agreement professionally drafted so that as many legal loopholes as possible be avoided!Whoever said……what`s LOVE got to do with it?

Note about the Author:
Dr Emmy D. Bezzina has been in private practice as a lawyer since November 1977 with Family Law in Court practice being one of his favourite,specialized areas.Dr Bezzina is Chairman/Founder of:Family Rights` Association – Malta.
e-mail: lawyer@emmybezzina.org; emmybezzina@onvol.net; Mob.No. 00.356.9949.3404.