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Termination of community of acquests during separation proceedings concern future dealings only

By November 28, 2021December 1st, 2023No Comments

The community of acquests may be terminated during separation proceedings, but this concerns future dealings of the spouses. This was held in a decree AB -v- Dr CB on 23 November 2021 by the Family Court presided by Mr Justice Anthony Vella.

The husband asked the court to terminate the community of acquests during the separation proceedings in terms of Article 55 of the Civil Code. He argued that none of the parties to the case will be prejudiced by this move. The spouses have been separated for some time and therefore, it does not make sense that they remain administering their property jointly.  The law allows this, as long there is no disproportionate prejudice of either of the parties to the case.

The law allows that the court declare the termination of the community of acquests before the final decision. If one party is claiming a disproportionate prejudice, it is up to that party that has to prove this.

If there is a termination of the community of acquests during the family court case, it does not hinder any of the party to produce evidence on the assets and liabilities of the parties. The property of the community of acquests will still remain to be in common and the new regime will be adopted for future transactions.

The wife replied to this application, by opposing to this request. She pointed out that her husband failed to explain why was he asking for the termination of the community of acquests. She further explained that she would suffer disproportionate prejudice as explained in Article 55(4) of the Civil Code. She explains that not all the evidence the separation case has been presented and therefore, the husband can manipulate a variety of factors. The husband also has been reluctant to list the assets and even hide some of these.

Mr Justice Vella explained that if the request is upheld, it would be that from the date of the partial judgment, the parties would no longer be tied together with regard to the administration of the assets and liabilities.

Until that date the community of acquests will remain intact and the property will remain in common. Then the court had to examine the objection being raised. The Court quoted from a previous judgement Ronald Asciak -v- Antonia Asciak decided on 5 December 2019. In this case the court held that the husband had been living with another woman for a long time.

She had not proved that the husband had falsified her signature and the onus was on her to prove that the prejudice caused would be disproportionate. Furthermore, the termination of the community of acquests concern future transactions and dealings and not past transactions. In order to safeguard any claims, the parties may file a precautionary warrant on the other party.

In another judgement Elizabeth Spiteri -v- Carmelo Spiteri decided on 24 October 2019, the Court of Appeal held that any decision with regard to Article 55(1) of the Civil Code would allow an appeal without asking leave from the court. The Court does have a discretion to decide whether or not to terminate the community of acquests. If it is terminated then it only applies to the future and not to the past and it does not affect the assets of the community of acquests.

Therefore the claim from one of the parties that it is going to be difficult to establish what does the community of acquests consist of, does not apply. The Court of Appeal took into consideration the fact that the spouses were in reality separated for a long time and this should also be reflected since the parties were not really sharing their property.

Mr Justice Vella agreed that the principles laid down by the Court of Appeal apply when the community of acquests are terminated. The case will continue and the community of acquests will be preserved in order for it to be divided.

Even it is shown that there is property which is hidden, then there are the remedies laid down in the law. This is not intended to give a disadvantage to any of the parties.

The Court then moved to uphold the request and declared the community of acquests terminated.

Av Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates

The article is available on MaltaToday