In Malta, there are three fundamental matrimonial regimes available that govern the property rights of spouses during marriage:
Community of Acquests: Under this regime, spouses share a common fund comprising their earnings and other income generated during marriage, with certain legal exceptions. Assets and liabilities within this communal pool are jointly owned and managed by both spouses;
Separation of Estates: In this arrangement, property acquired during marriage remains separate, belonging solely to the acquiring spouse, without entitlement for the other spouse; and
Community of Residue under Separate Administration (CORSA): During marriage, spouses maintain separate estates. However, upon marriage termination, the remaining assets are considered jointly owned by both spouses.
Upon marriage, the default matrimonial regime in Malta is the community of acquests, unless the couple has executed a 'marriage contract' (kitba taż-żwieġ) before a notary, expressly excluding the community of acquests in favor of either of the other two regimes. This contract is registered in the Public Registry to notify third parties.
Subsequently, spouses can alter their matrimonial regime post-marriage. However, to effect this change, they must obtain authorization from the Court of Voluntary Jurisdiction.
In the realm of family law, it is a prerequisite for spouses to engage in mediation sessions before obtaining Court authorization to initiate legal proceedings for personal separation or divorce. It is important to emphasize that mediation is obligatory in cases where disputes arise between parties, regardless of marital status, concerning matters such as the care and custody of minor children, spousal support payments, visitation rights, the division of marital property, or in situations where amendments to previously court-regulated matters are necessary, whether through judgment, decree, or personal separation agreement between the parties.
The law acknowledges two forms of separation: de facto and de jure. De facto separation is recognized when the relationship undergoes a significant breakdown, even if the parties continue to live together. This situation can persist for an extended period until the spouses decide to officially acknowledge the separation and establish the terms regulating their separation in writing by means of a separation agreement. When separation is formalized through a written agreement, it is termed de jure separation. Alternatively, separation happens when both parties mutually agree and acknowledge that the relationship has concluded.
Therefore, separation proceedings under Maltese law may be instituted either mutually by both spouses, or upon the demand of one spouse against the other.
Separation by the mutual consent of both spouses is carried out by means of a public deed (referred to as the separation agreement) which is to be published in front of a Notary Public. The key components of a separation agreement encompass the division of both movable and immovable property between the parties involved.
The separation agreement must delineate the division and allocation of all assets linked to the community of acquests between the parties. Upon signing the agreement, the spouses officially dissolve the community of acquests. This allocation process specifically excludes any property owned individually by either party before marriage, known as paraphernal property. Additionally, the spouses must come to a mutual understanding regarding the fate of their matrimonial home. If the home is jointly owned by both parties, common options include transferring ownership to one spouse with compensation to the other for their share or selling the home and dividing the proceeds.
Towards the conclusion of the separation agreement, several crucial general declarations are included. These declarations affirm the parties' contentment with the agreement's contents and establish its ongoing validity, applicability, and effectiveness even in the event of the marriage being declared null and void or a change in the parties' status. Pursuant to Article 62 of the Civil Code, spouses may opt to revert to their birth surname, a choice that must be expressly indicated in the separation agreement to be legally binding.
It's important to recognize that each agreement is tailored to the individuals involved and the specific circumstances of their case.
The separation agreement is the outcome of a successful mediation process and is considered a public document. It must be signed before a notary public after receiving authorization from the family court by means of a decree. Upon the parties' signatures, the agreement is then registered in the Public Registry.
In a judgement pronounced by the Civil Court (Family Section) in the Case 348/2013 decided on the 27th of February 2020, the court eemphasized that
"The agreement stands as law for the contracting parties... The fundamental principle governing the institution of Contracts always remains that the contractual agreement should be honored, and it is the expressed will of the parties, as outlined in the agreement, that prevails and should be respected." (Pacta sunt servanda principle)
The grounds for separation in cases of separation upon the demand of one spouse are provided for in article 38, article 40 and article 41 of Chapter 16 of the Laws of Malta.
Separation may be demanded by either one of the spouses on the following grounds:
If both spouses have valid reasons to seek separation from each other, such as both spouses committing adultery, each spouse may independently demand separation from the other. Therefore, if Spouse A seeks separation from Spouse B, Spouse B is not precluded from also seeking separation from Spouse A at the same time.