MALTA Law and Practice Contributed by: John Bonello and Elian Scicluna, 8Point Law
means, work capabilities, needs, and various circumstances when determining maintenance. Additionally, it takes into consideration circum - stances that impact the spouses’ ability to sup - port themselves and their children. An interesting provision in the law relates to employability. The fact that the person to whom maintenance is due – in most instances, the wife – has had her chances of employability dimin - ished because she has been out of the workforce for many years to take care of the children, the household and the husband will be taken into consideration when calculating maintenance. This clause intends to protect the stay-at-home wife or the wife who has had to abandon her career to take care of the family. A middle-aged woman who has been out of the workforce for more than a decade or two has limited chances, if any at all, of finding employment. These legal provisions also consider every other income or benefit the spouses may receive other than social security contributions. The accom - modation requirements of the spouse and of the children and the amount that would have been due to each of the parties (eg, a benefit under the pension scheme), which are being forfeited due to separation, are taken into consideration. In Maltese divorce law, there is also a provision that aims to protect the right to maintenance in the form of a monetary guarantee. In fact, the law states that maintenance can be safeguard - ed by means of a guarantee in the form of a sum not exceeding the amount of maintenance for five years. The court will only order such a guarantee if it is shown that the person provid - ing maintenance has, for example, consistently failed to pay maintenance, to the detriment of the children or spouse. If a divorcee receiving maintenance remarries or enters into a “personal
relationship” – presumably also including cohab - itation – then they will forfeit their entitlement to maintenance. This provision is also applicable in separation proceedings. 2.5 Prenuptial and Postnuptial Agreements Maltese law permits spouses to enter into pre - nuptial or postnuptial agreements. Such agree - ments are governed by Article 1237 of the Civil Code. This provision allows prospective spous - es to form agreements, provided they align with moral standards and the general principles out - lined in the Maltese Civil Code. In both prenuptial 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 mar - riage contract with mutual consent. Post-mar - riage alterations require court authorisation to ensure the rights of third parties and children are safeguarded. Any provision disallowed in pre - nuptial agreements is also invalid in postnuptial agreements. The subject matter of a contract is significant and Article 985 of the Civil Code prohibits con - tracts involving any subject matter that is impos - sible, 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 Prior to the enactment of the Cohabitation Act (Chapter 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 cohabiting couples. The only
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