MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
2.5 Prenuptial and Postnuptial Agreements Maltese law permits spouses to enter into prenuptial or postnuptial agreements, which are governed by Article 1237 of the Civil Code. This provision allows prospective spouses to form agreements, provided they align with moral standards and the general prin ‑ ciples outlined in the Maltese Civil Code. In both pre ‑ nuptial and postnuptial contracts, couples can agree on the separation of property acquired during mar ‑ riage or opt for CORSA. However, the Maltese Civil Code prohibits certain agreements, such as those establishing one spouse as the head of the family or altering the legal order of succession. Before marriage, couples may modify the marriage contract with mutual consent. Post-marriage altera ‑ tions require court authorisation to ensure the rights of third parties and children are safeguarded. Any provision disallowed in prenuptial agreements is also invalid in postnuptial agreements. The subject matter of a contract is significant, and Article 985 of the Civil Code prohibits contracts involv ‑ ing any subject matter that is impossible, prohibited by law, contrary to morality, or against public policy. Valid public deeds must be executed in the presence of a notary public. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Prior to the enactment of the Cohabitation Act (Chap ‑ ter 571 of the Laws of Malta) in 2017 (which has since been repealed and replaced by Chapter 614 of the Laws of Malta), Maltese law did not protect cohabit ‑ ing couples. The only protection cohabiting couples enjoyed was a quasi-contractual remedy of compen ‑ sation for services rendered – that is, the liquidation of compensation for services rendered by the court upon the demand of a cohabitee (usually filed by an unemployed person against the breadwinner in the household). The situation is now regulated in terms of law. The new Cohabitation Act generally entitles persons who consider themselves to be in an intimate relationship and who wish to live together to enter into a formal cohabitation relationship in terms of the Cohabitation Act, and bestows several rights and protections upon
couples who register their cohabitation pursuant to the provisions of the Cohabitation Act. These rights are similar to those enjoyed by married or civil union couples, and include the following. • Tenancy rights – a cohabitant is considered a ten ‑ ant for all legal purposes, irrespective of the date of the lease and whether it is residential or commer ‑ cial, granting them certain rights and protections in relation to such. • Family membership – cohabitants registered under the Cohabitation Act are recognised as family members. • Employment rights – cohabitants enjoy rights similar to those of married individuals or those in civil unions when it comes to work-related matters, including leave entitlements and other employment benefits. • Designated next of kin – under the Cohabitation Act, a cohabitant is regarded as the closest person to the registered cohabitant. This designation car ‑ ries certain legal implications, especially in matters involving inheritance and medical decisions. • Children’s allowance – cohabitants who have children are eligible to receive children’s allowance in accordance with the relevant legislation. Chil ‑ dren (if any) would also have the right to live in the common home, unless otherwise determined by a competent court. A person who was continually and habitually living with another person as a couple immediately prior to the termination of the relationship or the death of the other party, and who had been living with the same person for a period of not less than two years, and whose relationship is not regulated under any law may file an application before the court within 12 months requesting the following rights (as the case may be and subject to certain limitations): • the right of habitation in the common home for a period determined by the court; and • the right to be compensated for any patrimonial loss they may have suffered, where the other party would have enriched themselves to the former’s detriment.
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