Matrimonial Regimes Essay

1727 words - 7 pages

Under Maltese Law, the default regime, is that of the Community of Acquests, as indicated by article 1316 of the Civil Code, Chapter 16 of the Laws of Malta. In such a scenario, the regime which was chosen by Keith and Erika before marriage is this particular regime. Article 1316 states that,

“Marriage celebrated in Malta shall, in the absence of an agreement to the contrary by public deed, produce ‘ipso jure’ between the spouses the Community of Acquests.”

However, the law caters for scenarios whereby problems may arise, and thus both or one of the parties may wish to alter the regime which is administering their property. This may be done by either both or one of the spouses by the ...view middle of the document...

With relation, to Erika's case, section 1332(1)(b) applies.

" (1) The judicial separation of property may be pronounced -

(b) where the disordered state of affairs of one spouse or his or her conduct in relation to the administration of the acquests jeopardises the interest of the community of acquests, or of the family or of the spouse requesting the judicial separation of property"

As was stated by the Court in the case, In the case Angelina sive Lina Schembri vs. Francis Schembri, Civil-Family Court, 16th September, 2009, presided by Magistrate Ellul, the plaintiff requested the termination of the Community of the Acquests on the ground that her husband’s conduct in relation to the administration of the Community of Acquests was jeopardizing her interests of the Community of Acquests. In fact in such a scenario, the court stated that,

"Dan hu kaz klassiku ta’ dilapidazzjoni tal-beni minn wiehed mill-konjugi. L-agir tal-konvenut ma jistax jigi deskritt mod iehor ghajr attakk ghall-beni li taghhom l-attrici hi wahda mit-titolari, minghajr ebda konsiderazzjoni ghall-interessi taghha…..Hu evidenti li kemm ilu inqala’ l-inkwiet f’din il-familja, ilkonvenut qieghed jahseb biss fl-interess personali tieghu u l-qorti ma tistax tikkondividi l-modus operandi tieghu."

Therefore, in relation to this case, the fact that Keith, has been investing Community money in unsecured businesses, lent money to his friends, and also the fact that he has spent a lot of money on futile objects in order to pursue his hobbies, one may state, that his actions were jeopardizing the Community of Acquests. Moreover, the fact that such an action may only be requested by one of the spouses, makes Erika a valid candidate to institute such an action.

Sub-article 4 of article 1332, also states that the dissolution of the community, shall start to operate from the date when the judgement pronouncing such a judicial separation becomes a Res Judicata, however, without prejudice to any third party, the Court may decide, that such a separation shall be applicable retrospectively, from when the judicial act is filed.

Exclusion of one of the spouses from administering the Community of Acquests.

Moreover, as also stated above, the law also provides for other scenarios whereby it is possible for one to institute a case, so that one of the parties will be excluded from the administration of the Community of Acquests. In fact, section 1235, deals with checks and balances of this regime, whereby one of the spouses when breaching any of the circumstances stated in below, may be ordered by the Court to be excluded from such administration.

1325. (1) The competent court may at the request of a spouse order the exclusion of the other spouse either generally or limitedly for particular purposes or acts, from the administration of the community of acquests, where the latter spouse -

(a) is not competent to administer; or
(b) has mismanaged the community;

and in any such case...

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