What are Marriage Contracts?
At law, marriage is a far-reaching contract that regulates the important aspects of the spouse’s lives. Just like any other contract, the terms and conditions of a marriage may be established and amended by mutual consent. Marriage Contracts are referred to in Maltese as “il-kitba taż-żwieġ”.
Marriage contracts deal with the following topics:
A. Marital Property System (also referred to as the “matrimonial regime”)
B. Transfer of Property or Money
C. Social Aspects of Family Life.
Marriage contracts may be established prior to marriage through an ante-nuptial agreement or after marriage through post-nuptial agreements.
A. Marital Property System (Matrimonial Regime)
Couples in Malta are free to choose between three different types of marital property systems that regulate the property and monetary aspects of married life. These systems of property determine whether spouses will establish a common estate of property and if so, which assets go into the estate, what liabilities encumber the estate, and who manages the assets in the estate. The three systems of property allowed in Malta:
- The Community of Acquests
- Separation of Estate
- Community of Residue Under Separate Administration (CORSA)
If spouses do not enter into a pre-nuptial agreement their marriage will be regulated by the Community of Acquests' marital regime.
B. Transfer of property or money
Couples may agree that upon certain conditions relating to family life, property or money is passed on from one person to another. These agreements may involve third parties. Typically clauses relate to matters such as:
- That if children are born and the marriage breaks down, one party will receive immovable property or some form of other security.
- That in case of marriage breakdown one party is to give to the other a certain sum of money or immovable property.
Subject to the few rules outlined below, spouses are free to enter into any agreement they wish and may also include third parties.
The idea behind these agreements is to have the terms and conditions of the marriage clearly laid down before marriage life commences. These agreements may save one party from poverty in certain eventualities, particularly in the case of separation.
Marriage contracts allow spouses to fashion the terms and conditions of the marriage to their own individual needs. If contracted in good faith these agreements may be beneficial as they lay down the ground rules and avoid court litigation at a later stage.
C. Agreements on family life
Couples may also agree on social, cultural, or religious rules that will be observed during their marriage. These types of clauses are usually inserted by couples with different religions who specify the religion which the children will be brought up in.
General Rules on Marriage contracts
Parties are free to include any clause they wish in their marriage contracts, as long as:
- They do not enter into an agreement that’s contrary to morals or are inconsistent with the rules of the Civil Code (Article 1237, Civil Code).
- Neither of the spouses establishes themselves as ‘head of the family’, or enter into a contract that diminishes any of the rights they enjoy as parents or anything that is prohibited (Article 1238, Civil Code).
- They vary the legal order of succession, either in respect of themselves or their children or their descendants or with respect to children between themselves, saving testamentary dispositions that are allowed by law.
- The marriage contract is expressed in a public deed. Public deed is drafted by a notary and is available to the public at the public registry.
Drawing up Marriage Contracts
Marriage contracts may be drawn up before or after marriage on a public deed. If the parties have not yet contracted marriage, they may enter into a public deed stating that they intend to contract marriage and they wish that their marriage will be regulated in accordance with terms laid down in that public deed.
If spouses wish to amend the marriage contract after marriage they must first obtain authorization from the court. Amongst other safeguards, the court will ensure that through the marriage contract, third parties, such as children or the creditors of the spouses are not prejudiced by the marriage contract that is proposed.
