A critical analysis of how shares are treated within the community of acquests regime

Abstract

The community of acquests regime is considered to be the most common matrimonial regime regulated between spouses in Malta since it applies automatically upon the celebration of marriage. However, this regime may not always be the ideal matrimonial regime especially when a spouse holds or wants to acquire shares in a company during the course of marriage. The rationale behind this is that if shares are acquired in the community of acquests, it is considered to be a common asset and both spouses enjoy an equal share. This issue of analysing how shares are to be treated between spouses within the community of acquests regime is one which would normally arise in the context of separation proceedings or in determining the rights of a spouse. It is usually at this point that the spouses would become aware of the complexities involved when combining these two subjects of shares and the community of acquests together. The issues which can possibly arise in this regard are numerous. Therefore, this dissertation will focus on these various issues such as the way how shares are treated under the regime taking into consideration various circumstances depending on the situa9on being considered, the rights of a shareholder’s spouse, if any, and issues of tax on capital gains and stamp duty which arise when there is a transfer of shares inter vivos or causa mortis between the spouses. All this considered, when dealing with these maDers, the community of acquests regime cannot be disregarded. It is indeed a regime which prevails and certainly one which interferes with the way how shares would be treated between spouses whose marriage is regulated by this regime.