MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
However, personal possessions owned before marriage (paraphernal property) remain sepa - rate. Inheritance, even if acquired during mar - riage, is deemed paraphernal property. In terms of the Maltese Civil Code, the Community of Acquests applies automatically with regard to expatriates who relocate to Malta unless they agree to exclude such regime by public deed. The regime of Separation of Estates aims to keep assets distinct so that acquests made by the individual spouses during marriage remain distinct. This regime shields family assets from potential creditors in the event of bankruptcy of a commercial undertaking of either spouse. Specific rules apply to the matrimonial home. Irrespective of the ownership of the spouses’ abode, the court may give specific directions as to which party may take up residence during and after separation. In the ordinary course of proceedings, common matrimonial assets (often including the matrimo - nial home) end up being liquidated and the pro - ceeds thereof shared between the parties. Given that the court can only order a sale through a court auction, it is reasonable to expect the parties to sell their assets through realtors. In the few cases where a court auction is the only option, the price realised is usually below the market value. Maltese procedural law does not contain spe - cific rules on disclosure. It is up to the parties to bring forward evidence to prove the extent of the common assets and, where relevant, of the individual assets of the other spouse. Given that many separations are concluded amicably, the parties must rely on the good faith of the other spouse. In contentious proceedings, the parties summon entities such as banks, public
authorities, and employers to tender evidence of the holdings and earnings of the other party. This system is not ideal as it does not allow for complete and proper disclosure. 2.4 Spousal Maintenance In Malta, maintenance for children is the rule not an exception. However, this is not the case for spouses in Malta who are parting ways. Circum - stances of the case have a bearing on whether a spouse’s request for spousal maintenance is upheld. The Civil Code establishes a number of generic rules on maintenance – namely, that: • the spouse has a prior right over the parents or other ascendants to maintenance – where - as, where both the spouse and children claim maintenance, they will be in a position of equality; • no spouse may claim maintenance from the children or other descendants or from the ascendants if such maintenance can be obtained from the other spouse; and • the duty of one spouse to maintain the other will cease if the latter, having left the matri - monial home, refuses – without reasonable cause – refuses to return thereto. While common assets are divided equally between the spouses, the party responsible for the break-up may be ordered to pay main - tenance to the other spouse. In determining maintenance, the court considers the working capacity of the spouses, especially in instances where the party claiming maintenance is deemed employable. In amicable separations, spousal maintenance is ordinarily waived. Recent amendments to the laws on the mat - ter underscore the importance of considering
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