The matrimonial home: your rights and what can happen to it

The family home is usually the most important asset a couple has, and often the most emotional. This guide explains what the law says in Malta. Article numbers refer to the Civil Code.

During the marriage

The matrimonial home is where the spouses decide by common accord, in line with the needs of both and the overriding interest of the family (article 3A). If one spouse owns the home or part of it, that spouse can sell or give away their right over it only with the other’s consent, or with the court’s authority where consent is unreasonably withheld, or in a judicial sale at a creditor’s request. A spouse who did not consent can bring an action to annul a transfer within one year of its registration (article 3A).

When a separation case starts

While the case is going on, either spouse can leave the home, and either can ask the court to decide who lives in it (article 46). A spouse who leaves can also ask the court to allow a reasonable sum to be taken from the community of acquests to pay for somewhere else to live. The court agrees only if the departure and the expenses are justified and proportionate (article 47A).

What the court can order

On separation, at the request of either spouse, the court can order (article 55A):

• that one spouse is entitled to live in the home, to the exclusion of the other, for the period and on the conditions it considers appropriate;
• that the home is sold, if the court is satisfied that the spouses and children will have adequate alternative accommodation; or
• where the home belongs to both, that it is assigned to one of them, who compensates the other for the financial loss.

In every case, the court considers the best interests of the minor children, the welfare of the spouses and children, and whether they have, or could afford, somewhere else to live. It can change its decision if circumstances change substantially (article 55A).

Divorce

In a divorce, the spouse who applies can ask for what could be asked in separation, including orders about the matrimonial home (article 66D). Article 55A applies in divorce as well (article 66L).

Before you act

Please do not sell, mortgage or move out of the home before getting advice. What you do in the first weeks can affect what a court may later order. See the matrimonial home.