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Yours is Mine and Mine is Yours

Getting married the Maltese way involves endless hours of planning and a hefty amount of money. Let's face it, your wedding day may well be the most expensive day or evening of your life. With so many details of the wedding day: the dresses, the flowers, the music, the cake and all the frills that form part of the Big Day, very few couples think of the possibilities available at law when it comes to the management of assets and finances after marriage.

Very few people knock at a lawyer's office when everything is rosy, and when no problem is seen on the horizon, but it is actually the perfect time to have a mature conversation and at least be aware of all the options out there. What's interesting is the fact that not doing anything is a choice in itself. By opting to do absolutely nothing, from the wedding day onwards, couples implicitly and perhaps unknowingly opt for a system whereby anything earned from that day onwards becomes shared property with the spouse.

With so many tasks on an engaged couple's mind, it's easy to forget the legal consequences of marriage

Wages become automatically common property and anything acquired by a spouse would automatically become joint property as well. Similarly, any debt incurred by a spouse automatically becomes a common debt as well. Taking a bank loan or acquiring an immovable property would necessitate both spouses' signature and authorisation, which basically means that one spouse can veto the deal. This is what we refer to as the community of acquests - the automatic, default position applicable to couples who opt to do nothing before getting married. The pros and cons of this scenario are endless and, needless to say, what best suits a couple doesn't necessarily work for another but that's the beauty of the law and the flexibility it offers. However, if the options are not known, then the remedies available at law remain unused legal tools, and could very well present a missed opportunity.

Without getting into the question as to whether the community of acquests system is fair, whether it makes sense in today's world where many spouses are financially independent of each other, or whether it is something that would simply cause further problems should the marriage fail, engaged couples should arm themselves with all the necessary information beforehand, to then be able to make a wise and informed choice.

So what are the options? Couples have the liberty to choose the right regime which they think fits their needs best. They may decide to take the legal steps to exclude in a total manner the default scenario where any income, acquisition or debt incurred during the marriage become joint property. This is done by means of a public contract published before marriage is celebrated, with the help of a notary. Thus, in such a scenario where the community of acquests is consciously excluded, a couple could opt for a regime which is commonly referred to as the separation of assets. This system allows married couples to keep separate and independent estates, which allows them to enter into acts of extraordinary administration, such as taking loans or acquiring immovable property, on their own and without their spouse's authorisation.

Although other regimes are available at law, due to their complicated nature and difficulty to apply in practice, they are not popular at all, and it seems that the real choice for couples is to either opt for a joint common property regime (the community of acquests) or for a separate regime where both parties, despite their marital status, retain their financial independence. 

But are married couples who did not choose the system of separation of estates before getting married precluded from adopting separate administration? A change in a married couple's matrimonial regime is possible. However, unlike a decision which is taken prior to marriage, such a change would require the competent court's authorisation and if the court, upon examination of the request feels that there's no prejudice for either of the spouses, or for third parties, then such a request is usually acceded to. 

So if you're still getting married soon, add another task on your 'to do' list: inform yourself of your options, for this might actually be THE most important task you'll ever do.

Dr Abigail Critien

Employment Law - Family Law - Civil Law

This commentary should not be regarded as legal advice. If you are getting married and would like to understand your rights and obligations under Maltese law, contact us so we can advise you.

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