Matrimonial Regimes

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Matrimonial Regimes Keith and Erika have been married for the last five years. Before they married they decided that their future common property should be governed by the Community of Acquests regime. Keith was never a good administrator of his own money and during the last months, Erika found out that Keith had invested community money in unsecure businesses. Moreover, he has lent money to his friends and has spent a considerable amount of money in futile objects in order to pursue his hobbies. Erika is very angry with her husband and although she does not wish to separate from him, she intends to safeguard her property, monies and any future money that the couple may earn. She is pregnant with their first child and has left her job to bring up the baby. Advise Erika as to her remedies at law. Introduction: The Community of Acquests regime was primarily introduced in order to 'ensure the economical protection of the weaker spouse, i.e., women'[1], and to 'equalize the position of women and men in the traditional sense of marriage with a male breadswinner and a female housewife'[2]. Through this system, all property enlisted under article 1320 of the Civil Code forms a part of a common pool, over which both spouses may exercise acts of ordinary administration - a right which previously appertained solely to the husband: M’hemmx dubju li qabel l-1993, ir-rapprezentanza legali u guridika tal-komunjoni ta’ l-akkwisti kienet vestita f’idejn ir-ragel biss, li wahdu seta’ jagixxi u jiddisponi mill-assi tal-komunjoni kwazi bla xkiel. Bl-Att XXI tal-1993, li emenda l-Kodici Civili, il-posizzjoni inbiddlet u r-rapprezentanza tal-komunjoni ta’ l-akkwisti giet affdata fil-koppja mizzewga[3] Therefore, the wife now enjoys an undisputed legal right to contribute to the administration of the community property. Indeed, she has a vested interest to ensure that their money is well managed and if her personal or family interests are being jeopardised, she is granted remedies to protect them. Administration of Property: L-Artikolu 1322(1) tal-Kodici Civili jiddisponi li l-amministrazzjoni ordinarja ta’ l-akkwisti u l-jedd li wiehed iharrek jew jigi mharrek dwar dik l-amministrazzjoni ordinarja imissu lil kull wahda mill-partijiet mizzewga. Min-naha l-ohra, l-Artikolu 1322(2) jipprovdi li l-jedd li jitwettqu l-atti ta’ amministrazzjoni straordinarja, u l-jedd li wiehed iharrek jew jigi mharrek dwar dawk l-atti imissu liz-zewg mizzewgin flimkien.[4] With regard to the case at hand, Erika cannot be expected to rely on the belief that her spouse will request her consent before performing the limited number of acts under article 1322(3), that although relate to major decisions affecting community property, are exhaustive[5]. Whilst lack of consent may lead to the annulment of certain acts[6], still, few of the acts she complained of may be classified as extraordinary. Under their current regime, it would be unlawful for the spouses to enter into a post-nuptial agreement whereby administration is vested solely in the wife - article 1318 specifically bans the spouses from derogating from the provisions under sub-title III[7]. Nonetheless, this may be done through court authorisation. Article 1325 allows Erika to request the court to order the exclusion of her husband, either generally or limitedly, from the administration of the community of acquests. She must prove, on a balance of probabilities, that he either: (a) is not competent to administer, or (b) has mismanaged the community. This request was upheld in the case of Mary Grech vs. Reno Grech[8], whereby the court argued that this remedy was merited due to the intense disinterest that the husband had towards his business, a quality mirrored in his lack of participation in the judicial proceedings[9]. The court noted that in absence of specific requirements in the law[10], the spouse may proceed by any application, sworn or not. Furthermore, it recognised that such a request need not be accompanied by a case of personal separation: 'il-qorti ... ma tarax li ngabulha ragunijiet sufficjenti ghax ghandha tillimita l-applikazzjoni ta' dan l-Artikolu'[11]. Finally, the court ordered that the Registrar is notified of the decision, a vital requirement as per article 1325(3) so that third parties are informed. Consequently, this remedy appears to be very favourable for Erika - if it is successful, the administration of the community shall, to the extent to which Keith has been excluded, vest exclusively with her. There exist very similar provisions under Italian[12] and French[13] law. Interestingly, the grounds enlisted in the French text are drafted in a more specific manner than the Maltese equivalent: Si l'un des époux se trouve, d'une manière durable, hors d'état de manifester sa volonté, ou s'il met en péril les intérêts de la famille, soit en laissant dépérir ses propres, soit en dissipant ou détournant les revenus qu'il en retire....[14] Thus, fortunately for the requesting spouse, article 1325 is open to wider judicial interpretation. The French court may nominate an "administrateur judiciaire"[15] - a figure absent in our code and one worth considering in future amendments - defined by Dyson as a person nominated by the court to administer assets in an estate when the need arises[16]. Although not specified in the French code, his responsibility presumably arises pendente lite and ceases after judgement is passed. Allowing the possibility to appoint a permanent or temporary administrator to manage the spouses' property is another option for legislators to consider. In serious cases of dead lock between the spouses, it would be ideal to have their property administrated by a trusted professional - this would remove future hostility between the spouses all the while safeguarding their assets. Separation of Property: Erika may also resort to a complete judicial separation of their property, and from the acts complained of, she could have an action under 1332(1)(b)[17]. In Angeline Schembri vs. Francis Schembri, described by the First court as 'kaz klassiku ta’ dilapidazzjoni tal-beni minn wiehed mill-konjugi'[18], it was held that in order to apply 1332(1)(b) one need not prove that damage has actually occurred, nor did the husband need to be affected by some uncontrollable vice: 'hu bizzejjed imgieba li tipperikola l-interess tal-konjugi l-iehor, tal-komunjoni tal-akkwisti, jew tal-familja'[19] - a test which is at the court's discretion. The fact that the husband's conduct was wholly egoistic, lead to the termination of their regime and the separation of acquests, to be effective from the date when the judgement became final. In AB vs. CB[20], the court noted that traditionally, the husband was the head of the family's finances yet, even prior to the 1993 amendments, this did not entitle him to conceal all financial information from his wife. Interestingly, the court upheld plaintiff's plea under 1332(1)(d) - 'where one of the spouses has been excluded from the administration in terms of article 1325, either generally or to a great extent'; albeit no reference was made to article 1325. In the former case, the court quoted Italian jurisprudence[21] and article 193 of the Italian Civil Code. With a difference to our code, the latter clarifies which regime is to regulate the property of the spouses after judicial separation is pronounced - that of "separazione dei beni". One would assume that in Malta, the same would apply since upon partition, one half of the community is acquired by each spouse[22]. This property, not being community or dotal, becomes paraphernal and is retained and administered by the exclusive owner thereof. This regime does not offer protection to the wife in the traditional "breadwinner and housewife" scenario. If Erika opted for a separation of estates upon dissolution of the community property, her assets, even if properly administered, would eventually run out as she has no income. Her situation would be the same under CORSA[23]. A spouse may appoint the other as his agent[24] however, this would not necessarily exclude the former from administration. Furthermore, Keith would have to agree to this, it cannot be done unilaterally by Erika. Conclusion: An ideal remedy would be the "fondo patrimoniale" found under Italian law. This may be established alongside another regime 'a far fronte ai bisogni della famiglia'[25]. The assets that form part of the fund are subject to strict rules on administration, use, disposal and creditor claims - securing assets available for the interests of the family. Nonetheless, there is no equivalent option under Maltese law. Erika may apply to the court under article 6A[26] for its assistance in order to reach an amicable settlement, or provide the most fitting solution in the interest of the family. For instance, the court may recommend the separation of their community property, together with an agreement whereby administration of income generated by either, is in the hands of the wife. Both spouses have a lawful duty to maintain the family[27]. Therefore, if the husband is incapable of managing their assets as a bonus pater familias, there is a great risk that the court will order his exclusion from exercising rights over the community of acquests. Consequently, in light of the circumstances, article 1325 is, in my opinion, the best available option for Erika. Bibliography Books and Journals Dyson H, French Property and Inheritance Law: Principles and Practice (Oxford University Press 2003) Raoila V and Salomone L, Il regime patrimoniale della famiglia (Cedam 2008) Rešetar B, 'Matrimonial Property in Europe: A Link between Sociology and Family Law' (2008) 12.3 EJCL Thesis Muscat M, 'Marriage Contracts and Matrimonial Regimes: A Local and European Perspective' (LL.D. thesis, University of Malta 2011) Table of Legislation The Civil Code (Chapter 16 of the Laws of Malta) The Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) The French Civil Code The Italian Civil Code Table of Case law AB vs. CB [2011] Civil Court Family Section 2806/1997/1 Alfred Brown et vs. John Mifsud [2005] Court of Appeal (Civil Superior) 134/2001/1 Angeline Schembri vs. Francis Schembri [2009] Civil Court Family Section 17/2006; [2011] Court of Appeal 17/2006/1 Elmo Insurance Services Ltd vs. Edwin Pace et. [2003] Court of Appeal (Civil Superior) 122/1998/1. Jennifer Debono pro et vs. Rohan Debono [2000] Mary Grech vs. Reno Grech [2001] First Court Civil Hall 271/1996/2 Salvatore Cilia vs. Gaetana Cilia. [1955] Court of Appeal (Civil, Superior) vol. 39B part I 212
[1] Branka Rešetar, 'Matrimonial Property in Europe: A Link between Sociology and Family Law' (2008) 12.3 EJCL <http://www.ejcl.org/123/art123-4.pdf> accessed 11 March 2014. [2] Rešetar (no 2). [3] Alfred Brown et vs. John Mifsud [2005] Court of Appeal (Civil Superior) 134/2001/1; See also Salvatore Cilia vs. Gaetana Cilia. [1955] Court of Appeal (Civil, Superior) vol. 39B part I 212: 'l-amministrazzjoni ta’ l‐akkwisti konjugali tmiss lir‐raÄ¡el, illi quddiem it-terzi, jista’ jaghmel minnhom daqs li kieki kienu hwejjgu'. [4] Brown vs. Mifsud (no 3). [5] see Elmo Insurance Services Ltd vs. Edwin Pace et. [2003] Court of Appeal (Civil Superior) 122/1998/1. [6] Article 1326(1) of the Civil Code (CC): Acts which require the consent of both spouses but which are performed by one spouse without the consent of the other spouse may be annulled at the request of the latter spouse where such acts relate to the alienation or constitution of a real or personal right over immovable property; and where such acts relate to movable property they may only be annulled where the rights over them have been conferred by gratuitous title. [7] Thereby including article 1322 CC relating to the joint right of administration. [8] [2001] First Court Civil Hall 271/1996/2. [9] Grech vs. Grech (no 8): 'Illi n-nuqqas ta' interess li wera l-konvenut f'dawn il-proceduri huwa ssorpassat biss bin-nuqqas ta' interess li jidher li wera fit-tmexxija tan-negozju tieghu stess.' [10] Here the court made reference to article 125(1) of the Code of Organisation and Civil Procedure. [11] Here the court was making reference to the case of Jennifer Debono pro et vs. Rohan Debono [2000] which dealt with article 1323 - yet the former court applied the concept mutatis mutandis to article 1325. [12] see Article 183 Italian Civil Code. [13] see Article 1429 French Civil Code. The French Code also contains a similar provision under article 1426, the equivalent of which is not found under Maltese law. The latter relates to the request for substitution - a spouse is granted the right to exercise powers which previously appertained to the other spouse due to maladministration by the latter. [14] Article 1429 French CC: Si l'un des époux se trouve, d'une manière durable, hors d'état de manifester sa volonté, ou s'il met en péril les intérêts de la famille, soit en laissant dépérir ses propres, soit en dissipant ou détournant les revenus qu'il en retire, il peut, à la demande de son conjoint, être dessaisi des droits d'administration et de jouissance qui lui sont reconnus par l'article précédent. Les dispositions des articles 1445 à 1447sont applicables à cette demande. [15] Article 1429 French CC: A moins que la nomination d'un administrateur judiciaire n'apparaisse nécessaire, le jugement confère au conjoint demandeur le pouvoir d'administrer les propres de l'époux dessaisi, ainsi que d'en percevoir les fruits, qui devront être appliqués par lui aux charges du mariage et l'excédent employé au profit de la communauté. [16] Henry Dyson, French Property and Inheritance Law: Principles and Practice (Oxford University Press 2003) 422. [17] Article 1332(1)(b) CC: where the disordered state of affairs of one spouse or his or her conduct in relation to the administration of the acquests jeopardises the interest of the community of acquests, or of the family or of the spouse requesting the judicial separation of property. [18] [2009] Civil Court Family Section 17/2006. [19] Schembri vs. Schembri (no 18) confirmed by Court of Appeal [2011] 17/2006/1. [20] [2011] Civil Court Family Section 2806/1997/1. Interestingly, both in this case and in Schembri vs. Schembri, the courts emphasized that this action is distinct from the existence of separation proceedings between the spouses: 'hi ndipendenti mill-krizi matrimonjali li jistghu jkunu ghaddejjin minnha l-konjugi' [Schembri (no 18)]. [21] V Raoila and L Salomone, Il regime patrimoniale della famiglia (Cedam 2008) 138: 'La cattiva amministrazione della comunione intendendosi come cattiva amministrazione non solo quella compiuta in mala fede o con semplice negligenza ma anche quella che integra gli estremi di abuso dei diritti di amministrazione, ad esempio alienazioni a titolo gratuito di beni della comunione e il compimento, in genere, di atti di straordinaria amministrazione senza il necessario assenso dell’altro coniuge, allorche’ tali atti per la loro importanza, siano tali da essere di grave pregiudizio per la comunione medesima.' [22] Article 1333 CC. [23] Article 1339(1) CC: Under the system of community of residue under separate administration the acquisitions made by each of the spouses during the marriage shall be held and administered by the spouse by whom such acquisitions are made […]. [24] Article 1335 CC. [25] Article 167 Italian CC. [26] Article 6A is an innovative and opportune provision in theory, yet continues to gather dust in practice as it has rarely been resorted to since its enactment in 1993. [27] see Article 3B(1) CC.
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