Adultery as a cause for personal separation : a jurisprudential study

Abstract

This thesis focuses on adultery as a ground for personal separation between spouses under Maltese Law. It involves a comparative exercise, in that, the Maltese position is compared to the position prevailing in Italy. The obligations and rights arising from marriage are also discussed; with particular emphasis on the obligation of fidelity. The breach of the obligation of fidelity and its consequences are also taken into account. In addition to this, various arguments are put forward in order to determine what constitutes a breach of fidelity. The historical aspect with regard to adultery is delved into, in order to verify the substantial changes which have taken place over the years. Due to the fact that the main changes which have taken place are in the criminal field, the articles then present in the Maltese Criminal Code will be listed. Judgments which were decided by the Civil Courts, prior to the abolishment of the above-mentioned Criminal Code articles, are also dealt with, in order to verify whether the position and interpretation adopted by the judiciary back then, has in any way changed in a comparable manner today. The Parliamentary debates concerning the removal of the crime of adultery are also referred to the reason being that in this way, one will be aware of the arguments, in favour and against, which were put forward. A brief mention is made of all the grounds, under Maltese Law, for initiating an action for personal separation. Each ground will be explained briefly, by reference to judgments, in order to focus on the jurisprudential aspect. Since this thesis is based on jurisprudence, a number of local judgments dealing with adultery are referred to and analysed, distinctly from one another. In this manner, the Courts' line of thought comes to light and the position prevailing today may be verfied. Some patrimonial effects of separation will be discussed briefly too, taking into account the possibility of reconciliation between the spouses. Finally, a chapter is dedicated to the role and importance of evidence in the Maltese Courts.