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Rules regulating Marriage – Part I

by Dr Graziella Cricchiola – Junior Associate

This is the first part of the series discussing rules regulating Marriage

Some say that marriage is a game; andjust like every other game, there are specific rules regulating the institute of marriage. However, unlike the majority of games, when contracting marriage, spouses may choose which rules will regulate their ‘contract’ and more specifically how their post marriage financial position will be regulated.

Maltese law provides for three types of matrimonial regimes which regulates spouses’ financial and assets position during their marriage: (1) community of acquests, (2) separation of estate and (3) community of residue under separate administration (CORSA).

The community of acquests is the ‘preferred’ matrimonial regime at law. In fact, article 1316 of the Civil Code provides that in the absence of an agreement to the contrary, marriage celebrated in Malta produces ipso jure between the spouses – the community of acquests.

Nevertheless, spouses may opt to regulate themselves by the other matrimonial regimes if they enter into a public deed prior to their marriage.

Change in the type of matrimonial regime after the marriage may also occur provided that the spouses obtain Court authorisation.

What is the Community of Acquests?

Traditionally, the intention behind the community of acquets was to safeguard the wife who was usually financial dependent on the husband (being the breadwinner). This was mainly due to the fact that in the past, husbands were perceived as being the dominant figure in the family.

Article 1320 of the Civil Code provides an exhaustive list of what forms part of the community of acquests:

1. all that is acquired by each of the spouses by the exercise of his or her work or industry;

2. the fruits of the property of each of the spouses;

3. the fruits of property of the children;

4. any property acquired with moneys or other things derived from the acquests, even though such property is so acquired in the name of one of the spouses only;

5. any property acquired with money or other things which either of the spouses possesses since before the marriage or which, after the celebration of the marriage, have come to him or her under any donation, succession etc.;

6. Fortuitous winnings made by either or both spouses

In a nutshell, any income or assets not mentioned in the above list do not form part of the community of acquests and may remain paraphernal to either spouse. In the case where one of the spouses acquire a right over an immovable property prior to marriage and such right has been renewed during the marriage, any income or right derived from said immovable would form part of the community of acquests.

In the case of Falzon AIC Carmel et vs Carmelo Calabretta et, decided on the 28th February 2001, the Court of Appeal held that even though a contract of lease was entered into by the husband when he was a bachelor, the fact that the property consisted of the matrimonial home meant that the wife had a legal title to continue leasing property.

The Court held, “Appena sar l-ewwel ftehim ta’ kera wara z-zwieg, dik il-kirja kienet ghaddiet biex tifforma parti mill-attiv tal-komunjoni tal-akkwisti li nholqot bejn il-konjugi Calabretta. Dana kif kontemplat fl-artikolu 1320 (a) (d) tal-Kodici Civili”.

Prior to Act XXI of 1993, the management of the wife’s paraphernal property was also administered by the husband when the Community of Acquests was the applicable regime. However, things changed with the amendments introduced by Act XXI of 1993 whereby nowadays article 1334(2) holds that, ‘the management of paraphernal property shall appertain exclusively to the spouse to whom such property belongs’.

How is the property of the community of acquests administered?

In light of the fact that the property of the community of acquests pertain to both spouses, the legislator introduced two concepts – extraordinary acts of administration and ordinary acts of administration. Ordinary acts of administration of the property forming part of the community of acquests may be performed by either spouse (without the consent of the other) whereas extraordinary act of administration requires the consent of both spouses. In such a manner both spouses would be safeguarded and neither spouse would be prejudiced by any act performed by the other spouse.

While the community of acquests is still the most common matrimonial regime which regulates the financial position of spouses, more couples are looking into the possibility of entering into a pre-nuptial agreement, opting instead for the separation of estates. The separation of estate provides that property acquired during the marriage by each spouse would remain his paraphernal property. This matrimonial regime allows the spouses to be financial independent from the other spouses.

However this matrimonial regime will be discussed in further detail in the coming weeks.

small>Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@abalegal.eu.