Separation of property as an action and a remedy

Abstract

In a country where the wife has only just started to emerge from legal obscurity the marriage contract, one of the objects of which in the dowry, has definitely lost much of the importance previously attributed to it. However, the Maltese legislator, in amending the Civil Code, seems to have adopted the attitude that until woman's emancipation is finally ensured, the dowry must continue to form part of our legal system and consequently it must continue to be protected by the action of separation of property. This is an indication of the legislator's attitude in amending our community property system. The 1973 amendments were never intended to effect a general radical change but only to modify the existing situation where possible. In fact no attempt was made to shake the husband's position; he is still head of the community in spite of the fact that the notion of husband as owner has been done away with; he still enjoys extensive powers and is still personally liable for the debts of the community and therefore it is still to him that third parties turn in concluding transactions. The amendments served to restrict the husband's powers more than to provide his wife with powers of her own over the community. This emerges quite clearly a comparison with French law where the legislator concentrated on providing the wife with adequate powers over the community. The Maltese husband cannot now alienate or hypothecate the acquests without his wife's consent; he is liable for mismanagement like any other ordinary administrator on the other hand his wife is capable of charging the community without being personally liable. The result of all this is that while before the system was, if not eqalitarian at least balanced and the wife was the: gainer, now it is neither egalitarian nor balanced and the husband is the loser. Consequently, the action of separation of property still has a role to fulfill in Maltese Laws. The question remains whether this role has undergone a change in character or not, which question I will endeavour to answer in due course.