2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

In the absence of a marriage contract, the community of property shall apply between the spouses (Art. 1316 Maltese Civil Code (CC)). The community property comprises all property that is acquired by each of the spouses by the exercise of his/her work, the fruits of the property of each of the spouses and the moveable and immoveable property acquired for a consideration by either of the spouses during marriage. All property acquired by either of the spouses either by donation or through an inheritance is considered personal property of the spouse who receives/inherits it.

2.2. Are there legal assumptions concerning the attribution of property?

If there is no proof to the contrary, all the property which the spouses or one of them possess or possesses is presumed to be part of the community property (Art. 1321 para. 1 CC). If no marriage contract is entered into, the presumption is that all moveable and immoveable property acquired for a consideration by either of the spouses during marriage belongs equally to both spouses.

2.3. Should the spouses establish an inventory of assets? If so, when and how?

The law does not impose any obligation to do so. However, spouses are free in a marriage contract to make an inventory of assets owned by each one of them.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

Acts of ordinary administration of the community property may be exercised by either spouse. Acts of extraordinary administration, however, have to be exercised jointly by the spouses. The law specifically stipulates which acts are considered as being part of extraordinary administration where the consent of both spouses is required (Art. 1322 CC).

For example, the consent of both spouses is required for the disposal of immoveable property belonging to the community property and of the matrimonial home, even if it belongs to only one of the spouses. If acts which require the consent of both spouses are performed by only one spouse without the consent of the other, they may be annulled at the request of the latter where such acts concern the alienation or constitution of a real or personal right over immovable property. If such acts concern movable property, they may only be annulled where they confer the rights over such movable property by gratuitous title (Art. 1326 CC).

2.5. Are any legal transactions made by one spouse also binding on the other?

Acts of ordinary administration of the community property may be exercised by one spouse alone but are also binding on the other spouse.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Both spouses are jointly responsible for debts related to the community property and for those incurred for the needs of the family with their community property and their personal property (Art. 1327 and 1330 CC).

Debts related to a spouse's personal property form part of his/her personal debts, as do debts incurred through extraordinary administration of the community property without the necessary consent of the other spouse. Creditors of personal debts shall satisfy their claims against the personal property of the debtor spouse. If that is not sufficient, however, they may also use the community property, but only to the extent of the value of the share which the debtor spouse has in the community property (Art. 1329 CC).

Print this topic

back to top