What is a matrimonial regime?
A matrimonial regime is a system of asset ownership between spouses providing for the management of the assets and the debts accumulated during the marriage.
The matrimonial regimes established under Maltese law are the following:
- Community of acquests (COA);
- Separation of estates;
- CORSA (community of residue under separate administration).
Community of Acquests
The Community of Acquests is the default matrimonial regime under Maltese Law, applicable in the absence of any agreement to the contrary. Essentially, this is a fund in which all assets/liabilities which are acquired after marriage are placed therein. These would include employment income, fruit from the property of each spouse, and any acquired property.
Article 1320 of the Civil Code lists what is to be included in the Community of Acquests;
The community of acquests shall comprise:
- 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
- The fruits of such property of the children
- Any property acquired with money 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 money or other things which either of the spouses possesses since before the marriage, or which, after the celebration of the marriage, have come to him or her under any donation, succession, or other title;
- Fortuitous winnings made by either or both spouses.
Any other property not included in the above-mentioned article is considered to be paraphernal property.
If the spouses will eventually separate, everything included in the community, both assets and liabilities will be divided in half.
Separation of Estates
Under this matrimonial regime, each spouse will be able to manage their respective properties without the need for the permission of the other spouse. Both funds will be handled on an individual basis. Any property which has been obtained during the marriage remains to the spouse which had originally paid for it. Consequently, under this regime, neither type of property shall be shared between the spouses as shall be administered individually and not jointly. Any debt incurred by one spouse will continue to be the liability of that spouse and in no way is the other spouse liable to such debt.
Community of Residue Under Separate Administration (CORSA)
This matrimonial regime is commonly referred to as CORSA and includes aspects from both of the above-mentioned regimes.
The assets that are included under CORSA are just like those falling under the community of acquests and hence do not include paraphernal property.
Under CORSA the acquisitions made by each individual spouse during the marriage shall be held only by the spouse by whom such acquisitions are made, and shall be dealt with by such spouse as if such spouse were the exclusive owner thereof.
The only condition in which mutual management of property exists is where the spouses jointly purchase the property together.
A disadvantage of this matrimonial regime is that under this regime a spouse may not transfer any of his assets (including paraphernal property) under the gratuitous title (example by donation) except with the consent of the other spouse.
What is different from the other regimes is that upon dissolution of the marriage a final residue is computed and the spouse with the lesser amount shall be assigned an amount of residue from the other spouse in order that both spouses end with equal residues thus equal shares of assets.
How to opt for a matrimonial regime other than the Community of Acquests?
In order for a couple to choose the Separation of Estates regime or the CORSA regime prior to marriage, the couple must enter into a public deed before a notary public.
If the couple is already married, they must obtain approval from the Court of Voluntary Jurisdiction and this must be done by a Court application.
Family Law matters at SMM Advocates
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