MALTA Law and Practice Contributed by: Rosanne Bonnici and Rebecca Diacono, Fenech & Fenech Advocates
Furthermore, it is important to note that a marriage cel - ebrated outside Malta by persons who subsequently establish themselves in Malta shall also result in the application of the community of acquests between the spouses. However, the spouses may take steps locally to opt for an alternative matrimonial regime to apply to their assets. These rules are now subject to the application of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced co-operation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, which seeks to harmonise the appli - cable law with respect to matrimonial regimes across EU member states. The community of acquests generally covers all prop - erty acquired by each spouse after marriage, exclud - ing paraphernal property (“paraphernal property” refers to property acquired by either spouse before the marriage, donations received, and property inherited by either spouse). The community of acquests is jointly administered by both spouses. However, the Civil Code also caters for extraordinary acts that require the consent of both spouses, such as: • acts of administration whereby an immovable property or real rights thereon are acquired, consti - tuted or alienated; • the borrowing or lending of money (excluding deposits in a bank account); and • the settlement of community property on trust, including the variation and revocation of such set - tled property. The community of acquests is jointly administered by both spouses. In terms of the Civil Code, either of the spouses may nullify the effect of an act carried out by their spouse with which they do not agree. A spouse who deems there to be maladministration of commu - nity property may bring about an action to bring the other spouse back into a normative routine. This is possible if there is agreement between the spouses. In the case of disagreement, the spouses have two options:
• mutually requesting the court to mediate a solution; or • instituting an action against the other spouse. Separation of estates Under this system, each spouse retains their part of the estate, with full control and administration over it. If a couple wishes to apply the separation of estates as their matrimonial regime, they must appear before a notary to enter into a marriage contract to this effect; such contract is to be registered in the Public Registry. Community of residue and separate administration Under the community of residue system, the property that a spouse has and/or acquires prior to marriage remains their own, whereas the property acquired dur - ing marriage by each spouse will be held and admin - istered by the spouse who made the acquisition as a sole owner. In practice, this system is rarely applied by couples. Prenuptial, Antenuptial and Postnuptial Agreements The Civil Code caters for prenuptial, antenuptial and postnuptial agreements, subject to such agreements following the formalities catered for by law. With reference to prenuptial agreements specifically, spouses may enter into a prenuptial agreement with other stipulations as to which system of property (matrimonial regime) will prevail during the marriage. Certain clauses (primarily relating to inheritance) may be included in this agreement and are deemed to be valid on the basis that they are included in a prenuptial agreement; their inclusion in a contract other than a prenuptial agreement would be null. Foreign Marriages A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes in Malta if: • the formalities required for its validity according to the law of the country where the marriage is cel - ebrated are observed; and • each of the persons to be married is capable of contracting a marriage, according to the law of the country of their respective domicile.
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