Marriage celebrated in Malta, in the absence of an agreement to the contrary by public deed, produces by operation of law, between the spouses, the community of acquests. Similarly, marriage celebrated outside Malta by persons who subsequently establish themselves in Malta, also produces between such persons the community of acquests with regard to any property acquired after their arrival in Malta.
It is, however, competent to the spouses, even after the celebration of marriage, and with the authority of the court, to cause the cessation of the community of acquests established by law.
In simple terms, the community of acquests comprises all that is acquired by each of the spouses by the exercise of his or her work or industry; the fruits of the property of each of the spouses; any property acquired with moneys or other things derived from the acquests, even though such property is so acquired in the name of only one of the spouses; any property acquired with moneys or other things which either of the spouses possesses since before the marriage, or which, after the celebration of the marriage, may have come to him or her under any donation, or succession, and even though such property may have been so acquired in the name of such spouse; and any fortuitous winnings made by either or both spouses.
The law also states that all the property which the spouses or one of them possess or possesses shall, in the absence of proof to the contrary, be deemed to be part of the community of acquests.
Article 55 of the Civil Code, however, gives the Civil Court (Family Section) the power to, at any time during a cause for separation, and upon the demand of any of the spouses, order the cessation of the community of acquests existing between the spouses. Prior to ordering such cessation of the community of acquests, the court is to consider whether any of the parties shall suffer a disproportionate prejudice by reason of the cessation of the community before the final judgment of separation. The law fails to define the term ‘disproportionate prejudice’ and its interpretation remains the remit of the court.
Our courts have, however, often declared without any hesitation that none of the parties shall suffer a disproportionate prejudice by reason alone of the cessation of the community of acquests. On the contrary, courts have often opined that such an order is beneficial to both parties on their way to a complete personal separation.
In its judgment in the names ‘RB vs JB’ of May 26, the Civil Court (Family Section), presided by Madam Justice Jacqueline Padovani Grima, dealt with such a request. The applicant petitioned the court to order the cessation of the community of acquests pending separation proceedings between the spouses. The respondent, however, objected, citing as a reason for such objection the principal concern that should the court order such cessation, the applicant would no longer have an incentive to reach amicable settlement, which the parties had begun discussing.
Citing local jurisprudence, the court observed that, as a rule, the court is to order the cessation of the community of acquests existing between the spouses, except for such exceptional cases where it is satisfactorily proven that such cessation will bring with it a disproportionate prejudice to one party or the other. The court further observed that the cessation of the community of acquests cannot be prejudicial to a party’s share of the assets pertaining to the community of acquests, which such party may discover after the cessation, as the cessation of the community of acquests, the court noted refers to the future and not to such assets that already exist within the same community.
Acknowledging the respondent’s reasons for objection, the court agreed with same, in that it was not the opportune moment for it to consider the applicant’s demand – this procedure, the court noted, was not to be used as leverage for one party to force the other into accepting its conditions for settlement.
The main concern of the court, which it considered as disproportionate prejudice to the respondent, was the allegation that the applicant had started a business venture with his partner and, therefore, there was a real risk that the funds of the community of acquests could be mingled with the funds utilised in this business venture. This, according to the court, amounted to the disproportionate prejudice envisaged by the law.
The court proceeded to reject the applicant’s request in terms of article 55 of the Civil Code.
Keith A. Borg is a partner at Azzopardi, Borg & Associates Advocates.