3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Spouses are free to enter into a marriage contract whereby they choose the matrimonial property regime to regulate their property relations. The choice can be either (1) community of property or (2) separation of property or (3) community of residue under separate administration. Under the regime of community of residue, the property acquired by each spouse during the marriage is held and administered by the spouse who acquired it as if he/she was the exclusive owner (Art. 1339 CC). At the termination of the community of residue, the final residues of the spouses remaining after deduction of debts are equalised (Art. 1341 CC).
3.2. What are the formal requirements and who should I contact?
The marriage contract is to be made by public deed. A notary is the person to contact.
3.3. When may the contract be concluded and when does it come into effect?
If the marriage contract is concluded before the marriage, it comes into effect at the moment the marriage is entered into. However, as far as third parties are concerned, the marriage contract comes into effect from the date the notary registers the deed in the Public Register. If the marriage contract is concluded after the marriage, it comes into effect, as far as the spouses are concerned, from the date of the conclusion of the contract, and as far as third parties are concerned, from the date the notary registers this deed in the Public Register.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
Yes, the marriage contract may be modified, but any modification made after the celebration of the marriage requires the consent of the judge presiding the court of voluntary jurisdiction. Existing creditors who have a claim arising prior to the modification will not be affected.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
Under Maltese Law a matrimonial regime contract has effect from the day in which it is signed, and therefore cannot have retroactive effect.
