Family Law

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Our Families and Wealth practice group goes beyond helping families structure their wealth and invest it in the most optimal manner. Through our family law practice, our professionals also offer their industry specialist advice in relation to sensitive 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 main legal instrument which regulates marriage in Malta is the Maltese Civil Code. As per Maltese family law, entering into marriage creates a new ‘community’. The Civil Code provides for the regulation of the economic relationship of this community, and provides for three different types of marriage contracts. These are:

  1. The Community of Acquests – where there is no prior specification on what will happen in case a legal separation or a divorce occurs, this regime applies automatically and the assets acquired by the couple during the marriage will be split in half, excluding property bought before marriage, inheritances and donations.
  2. Separation of Estates– each spouse retains full control over possessions he/she acquired before and after marriage.
  3. 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.

Very often, nothing can crush the excitement of planning for nuptials like speaking of what will happen to the family’s assets in the dire scenario where the couple splits. Nonetheless, the harsh reality is that very often, marriages come to an early end. Many times, these also end up in a lot of heartache and costly, lengthy procedures for both parties who need to tackle highly sensitive financial arguments in an emotionally charged situation.  

The alternative would be to detail out how assets will be divided in the eventuality of a split or the death of a spouse before walking down the aisle through a prenuptial agreement, often termed as a pre-nup.

There seems to be the misconstrued opinion that a pre-nup is an indication that a couple is heading for divorce before the knot has been tied. However, this is very often not the case if these agreements are entered into with the mindset to protect the family home and investments. Pre-nups allow the couple to responsibly discuss and plan how their marriage will shape up their economic relationship. Furthermore, pre-nups are often signed to protect a spouse from being exposed to the risk which may arise from the other spouse’s commercial transactions and debts.

Moreover, pre-nup agreements may be beneficial where each spouse holds different religious beliefs and the couple wants to stipulate “that all the children, or any of them, shall be brought up in the religion of either of the spouses”.

In Cyprus, prenuptial agreements, as well as agreements regarding the future settlement of the matrimonial property conducted after the marriage takes place, but prior to separation (post-nups), are generally not legally binding under Cypriot law. The Court retains a degree of discretion with regards to which agreements it shall take into account, ignoring those which seem manifestly unjust or unfair.

  • Postnuptial Agreements

In Malta, section 1244 of the Civil Code deals with post-nupitals agreements in Malta. Spouses may opt to enter into a marriage agreements 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

Irrespective of whether a couple intends to split through legal separation or divorce, they must decide on the future of 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 Separation  

There are different forms of legal separation available. When the couple splits amicably through consensual separation (also known as bonarja), i.e. 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.

Where there is no consensus, such decisions will be taken by the court. Where the court finds one party guilty of the breakdown of the marriage, the spouse may lose his/her rights of maintenance, certain inheritance right 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:

  • Adultery
  • 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

Essentially, legal separation frees the couple from the obligation of cohabitation and assistance, but still binds them with the obligation to provide fidelity. In the eyes of the law, the couple is still married; therefore the separated partners are not free to remarry.

  • Malta Family Law regarding Divorce

The main difference between separation and divorce is that divorce offers the possibility of marrying again as it dissolves the previous marriage. Malta has introduced divorce fairly recently, in October 2011. The main obligation imposed under Malta’s divorce law is that 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. Divorce may be demanded by both spouses or by a spouse individually. It does not affect the right of the parties as parents and thus the spouse who files for divorce must prove he/she can provide just maintenance for children or to his/her spouse.

Cypriot family law, on the other hand, does not acknowledge the notion of a legal separation and thus couples who have lived in Cyprus for at least 3 months, irrespective of nationality, can get divorced, or alternatively seek an annulment from the Cyprus Family Courts if an application has been submitted three years from the registration. Cyprus distinguishes between marriages which were celebrated in a Church. In this case, the competent Bishop will need to be informed of the intention to divorce. Otherwise an application is made before the courts immediately.

Our firm has established itself as a leading law firm in Malta and Cyprus, thus our Family Law team has extensive ‘on the ground knowledge’ and will be able to refer you to the best professional to tackle your separation or divorce proceedings.

Family Law Advice

Our Family Team works closely with other practices to offer multidisciplinary advice which is tailored to the particular needs of each family. Apart from advising on the best course of action in respect of the aforementioned topics, our family law team can help you find the most efficient wealth structuring and asset management vehicles to protect your assets, property or family business. Often, trusts are foundations are the vehicles of choice for such families. Moreover, we provide succession planning services to help families seamlessly pass on their wealth from generation to generation. 



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Key Contacts

Dr Priscilla Mifsud Parker

Partner

+356 22056422