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,

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