Over the last two decades, Malta has seen enormous growth in areas such as maritime, tourism and financial services, which has, in turn, brought an influx of people over to our geographical gem, with the intention of making Malta their home for a few years, if not indefinitely.
A change in one's residence brings with it a number of obligations, ranging from obtaining a residence permit if the person transferring residence is a non-EU national; notifying the Department of Citizenship and Expatriates in the event that the person transferring residence is an EU/EEA/Swiss national, apart from also applying for an EU residence card on the basis of employment, self-employment or economic self-sufficiency; tax obligations, possible investments; the possibility of setting up companies and all the implications that brings with it; registering oneself with the Social Security Department etc etc.
What happens to the assets and income of married couples upon transferring residence to Malta? Do these remain governed by the matrimonial regime contracted upon their marriage celebrated elsewhere? What about liability – what happens if one or both spouses are sued in the Courts of Malta? What happens to the assets acquired by the spouses after their arrival in Malta? From our experience, it appears very few couples actually give this issue its due importance and as a result remain unaware of the impact a change in residence has on the manner in which the couple's assets are affected in accordance with Maltese Matrimonial Law.
The Maltese Civil Code states clearly that any marriage celebrated outside Malta by persons who subsequently establish themselves in Malta, shall also produce between such persons the community of acquests with regard to any property acquired after their arrival. This essentially means that the marriage contracted between two persons domiciled in a country other than Malta, shall be automatically governed by the system of Community of Acquests upon the couples' arrival in Malta, albeit limited to the acquisition of property following their arrival and this notwithstanding the fact that the couple's marriage may be governed by any other regime at the time of contracting the marriage, including a system of separation of estates.
The Community of acquests is a matrimonial regime, the general principle of which is that all income derived by either of the spouses, during their marriage, including the acquisition of movable or immovable property, pertains to both spouses in equal portions, notwithstanding that such income and/or property may have been made/acquired by the industry chiefly of one spouse. There are exceptions to this rule, which are also catered for in our law, however for the purpose of this article, I shall not delve into the latter.
Unless of course the couple moving to Malta have already opted for the community of acquests as the governing regime of their marital contract, the automatic application of Community of Acquests as indicted above can be circumvented quite easily. The couple may either opt for a contract of separation of estates (SOP), the signing of which shall be authorized by the Court and registered in the Public Registry of Malta, thus ensuring that it have effect erga omnes, or, if the couple have already signed a contract of SOP, they must request the court to confirm same.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.