Nuptial planning is an exciting and happy time for the couple and naturally consideration of entering into a pre-nuptial agreement might not be contemplated. However, there are circumstances that necessitate the couple to formalise a marriage contract (Kitba taż-Żwieġ) to regulate both the financial and non-financial aspects of matrimonial life.
These contracts may be entered into prior marriage (ante-nuptial agreements) or after marriage (post-nuptial agreements) with the agreement of both spouses. In terms of the Maltese Civil Code Chapter 16 of the Laws of Malta, that regulates marriage contracts, such contracts create a new ‘community’ and establishes the process by which to regulate the economic relationship of this community.
The spouses may, in an ante-nuptial or post-nuptial contract agree that their property acquired during their marriage shall remain separate or that it shall be governed by the system of community of residue under separate administration
There are three setups to a marriage contract to establish and regulate the community, which are:
1) The Community of Acquests: from date of celebration of the marriage all immovables and movables acquired, earned, enjoyed by the spouses shall form part of one and the same community known as the community of acquests, owned and adminsitered jointly by both spouses equally. Immovable and movables or any rights pertainig to both immovables or movables, that were owned or acquired by the spouses prior to marriage shall not form part of the community of acquests but shall belong solely to the spouse so endowed. Moreover, all immovable and movables or any rights pertainig to both immovables or movables inherited by either spouse shall not form part of the commuinty of acquests as well as any donations acquired by either spouse.
2) Separation of Estates– pre marriage and post marriage all immovable and movables and any right over any immovable or movable aquired, earned and enjoyed by the spouse so endowed shall remain owned and controlled solely by such spouse.
3) The Community of Residue under Separate Administration (Corsa) – all acquisitions made by each of the spouses during marriage shall be held and administered by the spouse by whom such acquisition was made.
In the case that future spouses do not elect to regulate the community by way of separation of estates or by community of residue under separate administration, then on marriage the regime of community of acquests shall automatically apply. A marriage contract is only valid if it is expressed by public deed.
Termination of the marital obligations
On marriage the spouses enter a binding contract governing the rights and obligations of the spouses. In terms of the Maltese Civil Code chapter 16 of the laws of Malta, such contract and the respective matrimonial rights and obligations conferred to the parties may only be altered or terminated by virtue of the spouses seeking legal separation, divorce or the annulment of the marriage. Whether the spouses decide to legally separate, or divorce or have their marriage annulled such must be preceded by them submitting to mediation.
