The community of residue under separate administration

Abstract

The system of Community of Residue under Separate Administration (CORSA), the rules of which have been introduced into Maltese Family Law only recently by means of Act XXI of 1993, is a member of the species of matrimonial property regime known as the system of deferred community of property. Such a system of administration of familial property is intended to combine the advantages of a system of separate property with those of a community of property. The advantages of a system of separate property are enjoyed by the spouses during the operation of the regime, while those of a community of property are enjoyed upon its dissolution. This is because, under this system, which may only be adopted by the spouses contractually, the gains made and property acquired separately by the spouses are administered separately by them during the course of operation of the regime, and are "equalized" between them at the termination of the regime. The first Chapter contains a preliminary appreciation of those basic concepts which constitute the groundwork of any law of matrimonial property regimes, particularly that of a deferred community of matrimonial property. This Chapter also briefly considers the raison d'etre of this matrimonial property regime as part of Maltese family law. The inclusion of this matrimonial property regime into Maltese Family Law reflects a particular objective, that of bringing the respective administrative powers of the spouses to the same level and promoting independent gainful activity at the same time. The second Chapter compares the Community of Residue under Separate Administration to the Community of Acquests. This chapter includes a look at enforcement rights of community and paraphernal creditors under both regimes. It is proposed that since the law makes no distinction between paraphernal and community creditors in its provisions regulating the CORSA, any creditor may proceed to enforce his claims against the property which is held and administered by a debtor spouse, whether such property be paraphernal or forms part of the CORSA. The third Chapter compares the Community of Residue under Separate Administration to the deferred community regimes provided and governed by other legal systems, particularly the German and the French regimes. The purpose of comparative study is to help understand what is distinctive (and problematic) about domestic law. It helps also to understand the nature and dynamics of the changes taking place within particular national systems. The comparative analysis of the system of the CORSA with similar models in the German and French legal systems has these aims in mind. Special emphasis has been made with regard to the German regime, in that on a first analysis of the Maltese regime, one has the impression that the Maltese legislator has been influenced mostly by the German community of accrued gains. Yet, in the end, what emerges quite clearly is the fact that the Maltese legislator has created a distinct regime which, although containing similar provisions to those existing in both the German and French legal systems, may be viewed as an independent and autonomous set of rules from its continental counterparts. One important distinguishing factor is that under the German and French deferred community regimes, each spouse is expressly stated in the law to be the exclusive owner of the gains or acquests which he separately makes during the course of operation of the regime; the equalization claim or the right to participate in the acquests is in principle to be paid in money; and the same right is subject to prescription as in the case of a debt rather than a right of co-ownership in matrimonial property. For this reason, under these systems, the separative element predominates during the course of operation of the regime, while the community element predominates at its termination. The Maltese regime is markedly different than the German and French models because the spouses do not seem to become the exclusive owners of the gains and acquisitions made by each of them during the course of operation of the system. Equalization of the final residues is effected by an assignment which may, it seems, be in kind as well as pecuniary. One should note that, just as the right to demand the division of common property is not subject to prescription, no prescriptive time period is laid down by the law to bar the demand for the liquidation of the CORSA Another important element is the net distinction which the law makes in several provisions of the Civil Code between the paraphernal properties of the spouses and the assets to be governed by the system of the CORSA This implies more than a mere community objective, to be fulfilled upon termination of the system, attributable to the gains and acquisitions made separately by each spouse. The fourth Chapter considers the legal relationship which would be established between the spouses under the system of the CORSA Particular attention has been given to the remedies available under this system in order to redress inter-spousal defaults and to what the liquidation of such a system entails after the cessation of its operation. The fifth and final Chapter consists in a technical and sociological appraisal of the CORSA Particular attention has been given to the deficiencies which continental doctrine has attributed to the continental deferred community regimes. The CORSA is a matrimonial proprty regime which is envisaged to be adopted by those spouses who exercise mutually independent economic activities and are on a par as regards earning power and prospects.