“The following actions are barred by the lapse of five years.
ACTIO DE IN REM VERSO CODE
The Court considered the defendant’s claim that the action was time-barred in terms of Article 2156(f) of the Civil Code which holds that: The plaintiff A had not opposed such case wherein DNA testing was carried out to establish the paternity of the child Z and which led to the conclusion, in 2002, that the child was indeed the son of Y. The Court noted that the defendant X had, in 2000, instituted proceedings for the child to be declared the son of Y. The community of acquests was dissolved and a declaration was inserted in the separation contract to the effect that the parties A and X declared that they held no further claims against each other. No maintenance for the child was considered thereby rendering the defendant X as responsible for her son’s maintenance. Upon their separation, X was granted custody of the child Z and it was established that A had no access rights and that the child be included on his mother’s passport. He made such declaration subject to the condition that at no point in time could X make a claim against him for anything and that he would not have anything to do with the child. The plaintiff in fact then signed a declaration on 8 July 1994, so confirming that he was ready that the disputed child be indicated as the son of the defendants X and Y. The Court noted how A had instituted separation proceedings against his wife X in 1994 whereby he held that although he had three children from his marriage to X, he held that X had claimed that the youngest child was not his. The Court noted that this was an action known as the ‘actio de in rem verso’, an action regulated by law and instituted in cases of enrichment, to the detriment of third parties, without just cause, which action may only be exercised where the person who suffers the loss may not take another action to make up for such loss. (v) The defendant was not enriched without just cause. (iv) A was always aware that the child was not his own and therefore, such maintenance should be deemed as a gratuitous donation leaving no grounds for this action to be instituted. (iii) without prejudice to the above, A’s requests were unfounded both in terms of fact and on the basis of law since the law expressly provides that there shall not be a reimbursement of maintenance and therefore, in view of such prohibition, there cannot be an action on the basis of unjustified enrichment (i) A’s claim was prescribed in terms of Article 2156(f) of the Civil Code (Chapter 16 – Laws of Malta) (iii) Condemn the defendants or either of them to pay the plaintiff the amount so liquidated. (ii) Liquidate the sum representing such enrichment without just cause
(i) Declare that the defendants or either of them had indeed been enriched without just cause to his prejudice
On this basis, the plaintiff A therefore requested the Court to: A therefore claimed that the defendants had been enriched without just cause to his detriment. By virtue of a judgement delivered by the First Hall Civil Court in 2002 it was in fact declared that the child was the natural and biological child of the defendant Y and not A’s. In June 1989, the child, Z was born and from his date of birth until the date of separation, A maintained the child as his own.
The facts of the case were essentially as follows:Ī and X were legally separated by virtue of a contract of personal separation in 1994. During the course of proceedings, the defendant Y passed away and was substituted by X acting as curator for her minor son as heir of the deceased defendant Y. The plaintiff A sued the defendants X and Y, the child’s mother and the child’s biological father respectively. This case concerned a claim for the reimbursement of maintenance supplied by the plaintiff A with respect to a child Z who he eventually found out was not his biological son.
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