Failure to pay maintenance in Malta is not merely a civil matter — it may also amount to a criminal liability under Article 338(z) of the Criminal Code. The law imposes a strict obligation on individuals ordered by a court, or bound by a legally valid separation agreement, to pay maintenance within the stipulated timeframes.
This offence may also constitute a continuous offence where maintenance payments are repeatedly missed over a period of time.
When Does the Offence of Failure to Pay Maintenance Arise?
For the contravention to subsist, the prosecution must prove the following elements:
- The existence of a court order or legally binding contract obliging a person to pay maintenance, such as a contract of separation;
- The maintenance due consists of a fixed sum of money; and
- The accused failed to pay the maintenance within fifteen days from the date on which payment became due.
Once these elements are established, criminal liability may arise.
Strict Criminal Liability for Non-Payment of Maintenance
Maltese courts have consistently treated the offence of failure to pay maintenance seriously. In practice, this is considered a form of strict criminal liability. The accused bears the burden of proving, on a balance of probabilities, that:
- the maintenance order was revoked;
- the separation agreement or maintenance obligation was amended or declared null by a competent court; or
- reconciliation between the parties took place.
Outside these limited circumstances, there are generally very few defences available to a person charged with failing to pay maintenance.
Recent Maltese Court Case on Failure to Pay Maintenance
In a recent case before the Maltese courts, the accused was charged with failing to pay approximately €2,000 in maintenance despite being subject to a court order requiring monthly payments.
The Court ultimately found the accused guilty and imposed a conditional discharge, provided that all outstanding maintenance arrears were settled within six months from the date of judgment.
Defence Arguments Raised by the Accused
The accused attempted to justify the non-payment by arguing that:
- he had previously paid an additional €1,000 to the notary during the purchase of the parties’ property; and
- he had made several payments by cheque during 2023, including amounts of €200, €160, and €25.
Arguments Raised by the Parte Civile
The parte civile objected to the arguments raised by the defence and contended that:
- the alleged notarial payments were irrelevant because the property purchase occurred before the parties’ separation and before the court decree ordering maintenance;
- the notary invoice presented by the accused lacked both a date and signature, and had not been confirmed on oath;
- the cheques produced referred to payments made in 2023, whereas the charges concerned unpaid maintenance during 2024; and
- the amounts allegedly paid did not correspond to the €250 monthly maintenance obligation imposed by the court decree.
Court’s Decision
The Court accepted the submissions of the parte civile and rejected the evidence produced by the accused, holding that it lacked probatory value and could not be relied upon.
The judgment once again confirms the strict approach adopted by Maltese courts in cases involving failure to pay maintenance. Persons subject to maintenance obligations should therefore ensure timely compliance with court orders and separation agreements, as repeated failure to pay maintenance may lead to criminal prosecution and conviction.
The parte civile wasrepresented by Dr Mattea Giglio and Dr Michaela Giglio