Statistics reveal that lone parenthood in Malta is on the increase.

Data published by the National Statistics Office demonstrates that lone-parent households with dependent children are at the greatest risk of poverty and social exclusion.

This goes to show the paramount importance of child support payment. It turns out that receipt of child support tends to enhance child development on many fronts, including children’s health, education achievements as well as from an emotional and social viewpoint.

In terms of the Maltese Civil Code, child support or maintenance, as it is more commonly referred to, includes food, clothing, health, habitation and education. On various occasions, Maltese courts have reiterated that with respect to maintenance obligations, domestic law does not differen­tiate between children of a married couple and those of unmarried partners.

The Civil Code provides that whosoever may be the person to whom the children are entrusted, shall maintain their right to watch over the child’s maintenance and education, and shall still be bound to contribute thereto.

Domestic legislation provides that both parents shall continue to provide sufficient maintenance to their children until said children attain the age of 18 years unless said children continue to study on a full-time basis or suffer from a physical or mental disability; in such cases, parents are bound to maintain their children till the age of 23.

So far, everything is rosy in the garden until the Family Court goes on to determine the amount of maintenance which the non-custodial parent should pay. Famous US actor, writer and director Ethan Hawke once said: “Everyone has to pay their child support, and no matter if you’re a Hollywood actor or anyone else, it’s always a little bit more than you want to pay.”

When determining the amount of maintenance, judges tend to consider the financial needs of the child, the income or earning capa­city of the child as well as those of the parents, any physical or mental infirmity of the child or of either of the parents, as well as the standard of living enjoyed by the family before a breakdown.

The key when determining the amount of child support, especially after a marital breakdown, is to ensure that the child continues to be brought up with the same standard of living as before.

If the parent supplying maintenance becomes incapable to continue to provide such maintenance, in whole or in part, the said parent may request the Family Court to be released from this obligation or that the amount of maintenance be reduced.

Such requests are usually acceded to when the applicant manages to prove up to the satisfaction of the court that the maintenance due cannot be paid due to a change in financial circumstances, such as when the parent becomes unemployed or when one’s salary decreases surprisingly.

The key when determining the amount of child support, especially after a marital breakdown, is to ensure that the child continues to be brought up with the same standard of living as before

If, on the other hand, a parent and/or spouse arbitrarily fails to pay maintenance contributions when due, this may amount to a criminal offence as provided under Article 338(z) of the Criminal Code.

In fact, article 338(z) provides that such offence is committed as soon as a person fails to give to a person the sum fixed by that court or laid down in the contract as maintenance for that person, within 15 days from the day on which, according to such order or contract, such sum should be paid.

However, married parents are not only legally bound to maintain their children but they are also legally obliged to maintain each other and to contribute towards the needs of the family in proportion to their means and ability to work.

This was the matter decided by the Court of Criminal Appeal on October 10 in the case in the names ‘The Police v Rade Djinovic’. Djinovic was first charged before the Court of Magistrates accused of failing to give to his wife the sum established by the court as maintenance for his wife and children from June 28, 2018, till November 28, 2018.

By means of a judgment delivered by the Court of Magistrates on July 20, 2020, Djinovic, upon his own admission, was found guilty of the charge brought against him and condemned to three months imprisonment, which were being suspended for three years.

Djinovic felt aggrieved by the said judgment and filed an appeal, requesting the Court of Appeal to confirm that part of the judgment whereby he was declared guilty and varies that part where he was condemned to three months of imprisonment suspended for three years.

The appellant argued that the punishment awarded was unjust and excessive. He contended that he was a first-time offender and that he never failed to abide by that same order in the part that interests the minor children.

The court observed that when a court is faced with determining punishment, various factors have to be reviewed, including those circumstances that affect the victim, the interest of society at large, as well as those of the accused.

With respect to Djinovic’s appeal, the court pointed out that although a year had passed from its due date, the appellant had failed to pay maintenance to his wife.

The Court of Appeal, in its accurate considerations, noted that the appellant “is either not realising that he is committing an offence against the administration of justice and insists in remaining in such default or otherwise is simply being in defiant and oblivious to the laws of the country”.

The Court of Appeal affirmed that the law is very hard on these type of contraventions, so much so that it provides a prison sentence for those who fail to comply with the law in this regard. It is worth mentioning that even if one is sentenced to an effective prison term, the duty to pay maintenance would still be due unless he or she gets a revocation of such an order from the Family Court.

Consequently, the Court of Criminal Appeal, after concluding that the punishment awarded by the Court of Magistrates was within the para­meters established by law, found no reason to depart from the said punishment and decided to confirm the judgment given by the first court.

Rene Darmanin is an associate at Azzopardi, Borg & Abela Advocates.