The objective of marriage contracts (Kitba taż-Żwieġ) is to regulate both the financial and non-financial aspects of matrimonial life. These contracts may be entered into prior marriage (ante-nupital agreements) or after marriage (post-nuptial agreements) with the agreement of both spouses. These contracts may however include provisions relating to third parties (for example a marriage contract may state that upon marriage the husband is to refrain from trading with a third party).
Regulating non-financial aspects of matrimonial life
The contracts will vary from one marriage to another, as the parties deem fit and may include provisions for the division of property during matrimonial life and should breakdown occur. In particular a marriage contract may for example specify:
- which religion are the children to be brought up in, and/or
- particular penalties that are to be imposed on the spouse if found guilty of domestic violence or if s/he continues habitually drinking during married life.
Regulating financial aspects of matrimonial life
Matrimonial life inevitably brings about financial costs that have to be shouldered by the spouses. Maltese law provides that spouses may choose between one of three different ‘régimes’ (set of regulations) which they can use to regulate the financial aspect of their married life. The only permissible financial agreements (a.k.a. matrimonial régimes) for marriages in Malta are the:
- Community of Acquests (CoA)
- Community of Residue under Separate Administration (CORSA)
- Separation of Estates (SoE)
By default, when a couple gets married in Malta the Community of Acquests régime applies. Therefore unless a couple does not make a marriage contract their relationship is governed by the Community of Acquests set of rules.
A couple may opt for a different financial agreement before getting married (through an ante-nuptial agreement) or change the agreement after marriage (post-nuptial agreement).
General Rules on Marriage contracts
The following are restrictions on marriage contracts:
- parties may not enter into agreements that are contrary to morals or are inconsistent with the rules of the Civil Code (Article 1237, Civil Code).
- spouses cannot in virtue of a marriage contract establish themselves as ‘head of the family’, or enter into a contract that diminishes any of the rights they enjoy as parents or anything that is prohibited (Article 1238, Civil Code).
- spouses cannot vary their legal order of succession, either in respect of themselves or their children or their descendants, or with respect to children between themselves, saving testamentary dispositions that are allowed by law.
- A marriage contract is only valid if it is expressed in a public deed. Therefore a marriage contract will have to be presented before a notary for him to create a public deed.