Besides assisting families in the structuring of their wealth and finding the best investment vehicles, our Families and Wealth practice group offers industry specialist advice regarding sensitive personal family issues such as pre-nups and post-nups, legal separation, divorce, as well as family law advice.
Family Law: Marriage Contracts (Prenuptial Agreements, Postnuptial Agreements)
- Prenuptial (Ante-nuptial) Agreements
The Maltese Civil Code contains a number of provisions which regulate marriage in Malta. The code provides that entering into a marriage contract creates a new ‘community’ and provides for the regulation of the economic relationship of this community. There are three different types of marriage contracts:
- The Community of Acquests – where the couple has not specified what will happen in the case of a legal separation or a divorce prior to the marriage, this regime will apply automatically and the assets acquired by the couple during the marriage will be split equally amongst them, excluding property bought before marriage, inheritances and donations.
- Separation of Estates– each spouse retains full control over possessions he/she acquired before and after marriage.
- The Community of Residue under Separate Administration (Corsa) – each spouse holds and administers the property he/she acquired as if he/she were the exclusive owner. At the termination of Corsa, the final residues of the spouses remaining after deduction of debts are equalised.
In most cases, the excitement of planning for nuptials is all the couple has on mind, and the last thing one would want to consider is what would happen to the family’s assets in the pernicious eventuality that the couple splits. Unfortunately, the harsh reality must be faced that marriages often come to an early end and this can spell out a lot of heartache and costly, lengthy procedures for both parties who need to tackle highly sensitive personal and financial arguments in an emotionally charged situation.
Alternatively, couples may opt for a prenuptial agreement whereby they specify how assets will be divided in the eventuality of a split or the death of a spouse before walking down the aisle, or do so after they are married through a post-nuptial agreement.
The general public's opinion seems to lean towards the belief that signing a pre-nup is an indication that the partners mistrust each other and are heading for divorce even before they are married. However, if these agreements are entered into maturely with the genuine intent to protect the family home and investments, pre-nups allow the couple to plan how their marriage will shape up their economic relationship. Moreover, pre-nups are often used to safeguard a spouse who would otherwise be exposed to the risks which may arise from the other spouse’s commercial transactions and debts.
Pre-nup agreements may also benefit couples of different religion who want to ensure “that all the children, or any of them, shall be brought up in the religion of either of the spouses”.
Section 1244 of the Civil Code deals with post-nupitals agreements in Malta and provides that spouses may opt to enter into a marriage agreement or change their marriage agreements after the marriage with the authority of the court, provided that such agreements do not impair the rights of the children or third parties.
Family Law: Separation and Divorce
In the case of the breakdown of a marriage, regardless of whether a couple will opt for a legal separation or a divorce, they will need to decide on what will happen to the property which forms part of the community of acquests, who shall be awarded care and custody of, and access to the children, and the amount of maintenance which is to be paid for the spouses and their minor children.
- Malta Family Law regarding Legal Separation
A legal separation will take a different form depending on whether the couple decides to split amicably or through court proceedings. In the case of an amicable consensual separation (also known as bonarja), the couple decides on the aforementioned matters without the need to go to court. Their agreement will be incorporated into a contract signed before a notary public.
The court must step in if there is no consensus. Where the court finds one party guilty of the breakdown of the marriage, the spouse may lose his/her rights of maintenance, certain inheritance rights and even half the share of a particular asset which has been mainly acquired through the work of the other partner and will also have to bear the costs of the court case.
As per Maltese Family Law, personal separation may be granted in cases of:
- Desertion for two years
- Cruelty, threats or grievous injury
- Irremediable breakdown of the marriage where the couple has been married for at least 4 years
It is important to note that legal separation does not confer the freedom to remarry onto the separated partners as in the eyes of the law they are still married, however it frees them from the obligation of cohabitation and assistance. Despite being separated, the partners still owe fidelity to each other.
- Malta Family Law regarding Divorce
Divorce dissolves the previous marriage in the eyes of the law, therefore it allows the divorced partners to remarry, which is what distinguishes divorce from legal separation. Divorce was introduced in Malta in October 2011. Under Malta’s divorce laws, the partners must have been living apart for more than 4 years with no hope of reconciliation, irrespective of whether they have attained legal separation or not. Either or both spouses may demand a divorce without this bearing on either spouse’s rights as a parent. A spouse who files for divorce must prove that he or she can provide due maintenance for the children or to his other spouse.
With years of experience in serving private clients, the firm has garnered a solid reputation and a wealth of experience which our family law practice draws on in order to deliver ‘on the ground’ knowledge and refer you to the best professionals on the island to tackle your separation or divorce proceedings.
Family Law Advice
Our Family Law team is well aware of the sensitivity of such issues and the bearing it may have on our clients. Our goal is to offer wholly comprehensive services which are tailored to suit all the needs of each client. Our clients will enjoy the peace of mind that comes with knowing that their family law matters are catered for and they can rely on our professionals to offer honest, professional family law advice on marriage contracts, separation, divorce, and even matters close to the heart, such as the best educational facilities for their children in Malta. Our family lawyers also work closely with other practices to deliver wealth planning and estate management advice to successful families, thus ensuring that all the family’s needs are truly seen to.