Division of property

When a couple separates or divorces, deciding who gets what is often as hard as deciding about the children. This page explains the basics in Malta.

The starting point

Unless the spouses agreed otherwise by public deed, a marriage celebrated in Malta produces the community of acquests between them. In short, what each spouse acquires during the marriage through their work, and the fruits of the property each owns, belongs to the community, and each spouse owns half. Property owned before the marriage, and property inherited or received as a gift, generally stays with the spouse concerned (this is “paraphernal” property). See the community of acquests.

Some couples choose a different system in a marriage contract. See marriage contracts.

When the community ends

• During a separation case. On the request of either spouse, the court can order the community to cease at any time during the case, if neither spouse would suffer disproportionate prejudice.
• On separation. Separation is one of the grounds on which a court can pronounce the judicial separation of property. In that judgment, the court directs that the community ceases from the day the judgment becomes final, or, if it chooses, from the day the case was filed.
• On divorce. The rules for dividing the property apply in the same way. Where the community has already ceased, the spouses can agree to divorce without first dividing their shared assets.
• In other cases. A court can also order the separation of property where, for example, a spouse is incapacitated, a spouse’s affairs or conduct jeopardise the family’s interests, or a spouse fails substantially to contribute to the needs of the family.

How the property is divided

The community is divided by assigning one half of the assets and liabilities to each spouse. Each spouse has a right to be reimbursed for money taken from their own property and spent on the community, and must reimburse the community for money taken out to pay private debts.

The spouse who starts a separation or divorce case files a sworn list of assets and liabilities (including the matrimonial home) with their proposals for dividing them, and the other spouse has 20 days to respond and, if they wish, make counter-proposals in a similar note. If you can agree, that agreement is submitted to the court. If not, the court decides, and if it cannot yet decide how the community is to be liquidated, it decides everything else first and returns to that point later. The court can also encourage you to go to arbitration. See financial disclosure in a Maltese separation for a checklist of the documents involved. Digital assets such as cryptocurrency raise their own questions; see cryptocurrency in a Maltese separation or divorce.

The matrimonial home

The home usually matters most. See the matrimonial home.

Blame

Where a separation is granted because of adultery or desertion, the spouse who gave cause for it loses certain rights, including a share of the acquests made chiefly through the other spouse’s work after a date the court fixes. Where separation is granted on the ground of excesses, cruelty, threats or irretrievable breakdown, the court has a discretion whether to apply the same consequences, in whole or in part. It has a similar discretion where both spouses gave grounds. The court can apply the same consequences in a divorce case against the spouse it finds responsible for the breakdown.

If you are not married

The community of acquests belongs to marriage. If you live together without marrying, your property is not shared automatically, and the rules above do not apply to you. What you can claim depends mainly on whether you made a cohabitation deed. This section sets out what matters for property. Cohabitation explains the law as a whole.

If you have a cohabitation deed

Couples who make a public deed of cohabitation under the Cohabitation Act can choose to share some property, but far less than married couples do. The deed must say whether the Act’s rules on a community of assets apply. If it says nothing, they are presumed not to.

If you include a community of assets, it covers only:

• the cohabitation home, where it was acquired after the deed (and not if it came to one of you by gift or inheritance, or before the cohabitation); and
• the movables kept in the home that were acquired after the deed.

Money, securities, vehicles, boats and items used by only one of you are not included. Everything else belongs to the person who owns it. See the cohabitation agreement and certificate and rights and duties of cohabitants.

When a cohabitation with a deed ends, whether by agreement or on one partner’s application, the court can deal in the same case with the children, maintenance, the home and the end of the community of assets, much as in a separation. The rules about fault do not apply. See ending a cohabitation.

If you have no deed

If you have lived together for at least two years and your relationship is not regulated by any law, the Act still gives you two limited remedies. You can apply to the court, within twelve months of the relationship ending or of the other person’s death, for:

• the right to stay in the common home for a period, so that you can find somewhere else to live; and
• compensation for any financial loss you suffered, where the other person has enriched themselves at your expense.

The right to stay in the home ends if you marry, enter a civil union or start cohabiting with someone else. If the other person has died, you can ask to stay in the home for a time only where they owned it in full (or by emphyteusis), alone or jointly with you.

Outside these remedies, living together does not by itself give you a share in the other person’s property. Ownership is decided by who owns what, and by what can be proved. A recent Court of Appeal decision, reported in a relationship and plans for building works do not prove joint ownership, shows how a claim to joint ownership between former partners can fail where the evidence does not support it.

The twelve-month time limit is short, so it is worth taking advice early if a relationship has ended or a partner has died.

If you have children

Disputes between unmarried parents about care, custody, residence, access and maintenance of their children go through the same Family Court mediation and court process as for married parents. See children.

Where to start

If you are not married and property is involved, whether you are thinking about a deed or a relationship has ended, a conversation about your own circumstances is the right first step. See also cohabitation in Malta.