The legal effects of marriage and its dissolution on the patrimonial rights of the spouses : with special reference to the community of acquests

Abstract

Probably the most fundamental effect of marriage is the community of life arising between the spouses: in principle, this is destined to be permanent and indissoluble. Although this community of life is most commonly viewed from a personal and spiritual perspective, marriage also necessarily entails a community of life on another level altogether - the patrimonial, as opposed the personal, level. Although future spouses are not quite expected to give considerable thought to the economic consequences of their marriage, it is nevertheless an undeniable fact that this community of life implies certain common pecuniary interests which may, in turn, give rise to various legal issues concerning the patrimonial rights of the spouses. All spouses must have a matrimonial regime: a basic undertaking which guarantees a mutual understanding as to property rights and provides protection for an often unforeseeable future. A matrimonial regime is thus essential for the regulation of the pecuniary interests and patrimonial relations that arise as a necessary effect of marriage, both between the spouses themselves and between the spouses and third parties. In particular, according to Planiol et Ripert, a matrimonial regime is necessary in order to determine by whom and in what proportion the onera matrimonii are to be borne; whether the property already belonging to either spouse will be held and administered separately or whether it will form part of a common fund; whether whatever is acquired by either spouse during the course of the marriage will belong to such common fund to be divided upon the termination of such marriage or whether it will remain the personal property of either spouse; whether or not the spouses enjoy equal legal rights in this context, and so on. Moreover, it is equally necessary to carefully determine the rights of those persons who may eventually contract with either spouse: will such persons only have rights over the patrimony of the contracting spouse, or will they also be able to tum to the patrimony of the other spouse, in order to obtain the execution of the obligations contracted in their favour? And, in the latter case, under what conditions and to what extent is this possible? Only a matrimonial regime can provide a coherent solution to the above issues. The legislator has thus had to select and establish, as a necessary consequence of marital status, the regime most appropriate for the legal regulation of the patrimonial aspects that characterise the typical Maltese marriage. The patrimonial rights of those spouses who marry without having expressly regulated their patrimonial status in virtue of a marriage contract, for instance by excluding the application of the legal regime in their regard, will automatically be governed by the system chosen and established by the law for the purpose: the legal regime. Therefore, a detailed examination of the constituent elements and operational aspect of this legal regime is necessary in view of the fact that, as it governs the greater part of marriages celebrated in Malta, it assumes paramount importance in any discussion concerning the patrimonial rights of spouses. Our legislator has also given due consideration to the realities of modern society. The reforms of the Maltese Family Law effected by Act XXI of 1993 introduced and enshrined the notion of spousal equality as the foundation and the inevitable consequence of marriage, in respect of both the personal and the patrimonial rights of the spouses. It is clear that the spouses are now equal partners in a marriage that demands the spouses' reciprocal contribution, in whatever form, to the needs of the family. Accordingly, this principle of equality is reflected not only in the fundamental elements of the legal regime itself, but also in the other regimes expressly contemplated by the law, in such a way that following the removal of all legal discrimination between the spouses, they are now granted equal rights in respect of their patrimonial rights during marriage, that is, an equal power to act on the patrimonial level in the overriding interests of the family. Unfortunately however, one cannot fail to observe that the concept of a patrimonial regime between spouses only assumes great significance, and indeed fulfils its basic purpose, upon the termination of the community of life between the spouses, and thus of the marriage itself This is precisely why the economic aspect of marriage and the relative patrimonial rights of the spouses are not generally among those issues which occupy the thoughts of future spouses. Nonetheless, it remains necessary to examine the manner in which the legal matrimonial regime is terminated and consequently liquidated between the spouses upon the termination of their marriage (and in the other cases provided by the law for the cessation of the economic marriage between the spouses), and the manner in which the rights of each spouse as well as of third parties, are guaranteed and protected as a result of the underlying principle of spousal equality. Finally, as the legal regime may be excluded by the spouses by means of an ad hoe stipulation in a marriage contract, it is clear that any discussion concerning the legal regime also requires an examination of the extent to which the spouses are free to actually avoid the strict application thereof, whether totally or partially. Therefore, the final chapter of this thesis will deal with an examination of the principle of liberty of marriage contracts as well as of those elements necessary for the validity of such contracts.