Italian and Maltese provisions relating to the Community of Acquests

A short comparative study between Italian and Maltese provisions relating to the Community of Acquests

by Aron Mifsud-Bonnici

Art. 180-200

In respect of the administration of the community of acquests it is evident that, apart from slightly different language being used, Art.180 corresponds to section 1322 sub-sections (1) and (2). Both codes provide that acts of ordinary administration of the acquests and the right to sue or be sued ("rappresentanza in giudizio") vests in either spouse "disgiuntamente". On the other hand, acts of extraordinary administration or "atti eccedenti l' ordinaria amministrazione" must be carried out jointly by the two spouses. The approach which is apparently taken by our legislator was to provide, as an exhaustive list in 13 paragraphs under section 1322(3), what an act of extraordinary administration is. By excluding these acts of extraordinary administration one can arrive at what an act of ordinary administration is. On the contrary, the Italian legislator refers to acts of administration of the acquests in general and then refers to "atti eccedenti l’ ordinaria amministrazione" by way of an exception to the norm. Only the latter require joint administration and joint judicial representation. The Italian provision provides no list for reference and, though on occasions such a list would be convenient, it has sought to avoid the ever-present pitfall of omitting an act through legislative short-sightedness. Nonetheless, Art.180 does mention as requiring joint action "la stipula dei contratti con i quali si concedono o si acquistano diritti personali di godimento", possibly by way of avoiding contentions on this point.

Where joint consent is required for validity of the act and where such consent is refused by one spouse, then the other spouse may apply to the First Hall of the Civil Court for authorisation when the extraordinary act "is necessary in the interests of the family." This principle can be found in both section 1323(1) and Art.181. The Italian provision, however, includes the interests of a business enterprise which forms part of the community of acquests as well as the interests of the family. The proviso to section 1323(1) adds a further option which is not found in the Italian provision namely, that both spouses together may choose the Judge of the Second Hall as an arbitrator.

Section 1323(2), which provides for the absence of one spouse from Malta, is a mere translation of the first paragraph of Art.182. The second paragraph again refers to "gestione comune di azienda" where it provides that "uno dei coniugi può essere delegato dall’altro al compimento di tutti gli atti necessari all’attività dell’impresa". The Italian provision speaks of delegation where one would refer to our section 1322(5) which provides for the appointment by one spouse of the other spouse as his or her mandatory in respects of acts which would otherwise require the joint consent of both spouses. However, it is section 1324 which provides for the administration of a trade, business or profession. This section does not mention mandate but rather it gives authority to the spouse who is actually exercising such trade, business or profession to carry out "normal acts of management" even when such acts would constitute acts of extraordinary administration. What constitutes "normal acts of management" will evidently be the subject of future court decisions.

Art.183 and section 1325 provide for the exclusion of a spouse from the administration of the community. The court of contentious jurisdiction may exclude a spouse from the administration if such spouse "is not competent" ("non può amministrare") or if he or she "has mismanaged the community" ("ha male amministrato"). In either case, the administration of the community then vests exclusively in the spouse not so excluded. The Italian provision also lists as a ground of exclusion the fact that one spouse is a minor - this, however, finds no mention in section 1325. Both provisions agree, though, that once the reason for the exclusion no longer holds, it is possible for the spouse to be reinstated in the administration of the community. They also agree that, in case of interdiction or incapacitation of a spouse, exclusion "opera di diritto."

When acts requiring the joint consent of the spouses have been performed without such consent, it is possible for the aggrieved spouse to request that such acts be annulled. This is possible in respect of acts which "relate to the alienation or constitution of a real or personal right over immovable property." Contrary to Art.184, our section 1326 also includes acts relating to movable property where the rights over them have been conferred by gratuitous title. Movables are not within the purview of the Italian provision with the exception of particular movables such as aircrafts and ships. Section 1326 provides a peremptory term of 3 years for the exercise of the action of annulment and such term starts to run from:

the date when such spouse became aware of the act, or

the date of registration, where such act is registerable, or

the date of termination of the community of acquests.

On the other hand, Art.184 provides a term of only one year. However, contrary to the Italian provision, section 1326(3) reduces the term to a mere 3 months if the spouse in default has given notice of the act by means of a judicial act. Where the acts performed without consent do not refer to rights over immovables etc., then such acts may not be annulled by the aggrieved spouse but he or she has a right to demand that the community be reintegrated or that the loss that the community has suffered be made good.

Art.186 and section 1327 list the debts with which the community of acquests may be burdened. These sections are essentially very similar but the Maltese provision also includes other headings which are not mentioned in Art.186. Section 1327(e) mentions ordinary repairs to property of either spouse, when the fruits of such property are included in the community. Also, section 1327(f) refers to debts or indemnity due as a civil remedy by either spouse. This is chargeable on the community as long as it is not due as a civil remedy in respect of a criminal offence committed by the spouse, in which case such spouse would presumably have to make good such debt by means of his or her paraphernal property.

In general, when debts have been incurred separately by either spouse and the community of acquests is not charged with such debts, the debtors of such spouse must attempt to satisfy their claim against the paraphernal property of the spouse who has incurred the debt. Nonetheless, it is possible that the spouse’s paraphernal property fails to satisfy such a claim. In this case Art.189 and section 1329(1) provide that the creditors may enforce their claim in subsidium against the community of acquests but only to the extent of the debtor-spouse’s quota in the community. Section 1329(1) and Art.187 both emphasise that this is possible irrespective of whether such debt was incurred by the spouse before or after marriage.

Art.190 and section 1330 agree that the paraphernal property of both spouses is chargeable in subsidium with debts which cannot be satisfied with the assets of the community of acquests alone. However, section 1330 makes an important exception to this rule in that where

the debt is due as a civil remedy in respect of a wilful offence committed by either spouse; or

the debt is one arising out of the exercise of a trade, business or profession as is referred to in section 1324;

such debt is enforceable, to the extent of any part remaining unsatisfied by the assets of the community, only against the personal property of the spouse who has given rise to the claim.

Art. 191 list various instances when the community of acquests may be considered to be dissolved. Such instances are the presumption of death of one of the spouses, annulment of marriage, personal separation, and even by the bankruptcy of one of the spouses. There is no such mention in our Code but section 1319, in the opening sections of the Sub-Title Of The Community of Acquests, states "The right of each of the spouses to the community of acquests shall ... commence from the day of the celebration of the marriage and terminate on the dissolution thereof."

When dealing with reimbursements and restitutions, the Maltese legislator has found it fit to adopt a literal translation of Art.192 as section 1331. It is possible, though, that the legislator has made one oversight, namely, that section 1331 states that a spouse is bound to reimburse the community "unless he can show that the act was one which was advantageous to the community or was performed to satisfy the needs of the family." That no reimbursement should take place is evident from section 1327 itself which includes such an instance in sub-section (c). Possibly, the legislator failed to include the qualification "trattandosi di atto di straordinaria amministrazione da lui compiuto" which would justify the presence of such a specific mention in section 1331.

Section 1332 and Art.193 deal with the judicial separation of property. Such separation may be pronounced:

upon interdiction or incapacitation of one of the spouses;

when there is a disordered state of affairs by one spouse which endangers the interest of the community of acquests, or of the family, or of the other spouse;

when one of the spouses fails to contribute to the needs of the family according to his or her means.

Furthermore section 1332 allows a spouse who has been excluded from the administration of the community under section 1325, either generally or to a great extent, to demand judicial separation of property himself or herself. This is not possible under Art.193 of the Italian Civil Code. Nonetheless, this possibility under Maltese law is qualified in section 1332(3) where it is stated that in such a case "... the court shall, where the judicial separation causes financial damage to the other spouse, order the spouse demanding judicial separation to pay compensation to the other party for the loss that such party may have suffered because of the separation."

Under Italian law, the judgement pronouncing the judicial separation of property "retroagisce al giorno in cui è stata proposta la domanda" and has a further effect of creating a regime of separation of estates between the spouses for the future. Section 1332(4), on the other hand, gives a discretion to the court which may either direct that the termination of the community should have effect from the day on which the judgement becomes res judicata, or that such judgement operates retrospectively to the date of the filing of the judicial act. In either case, the same sub-section gives a right to the creditors of either spouse or of the community of acquests to impeach the separation if it was pronounced in fraud of their rights. In any case the judgement is not operative against third parties until it is registered in the Public Registry [section 1332(9)].

The partition of the community of acquests is executed by allocating one half of the assets and liabilities which such community comprehends to each of the spouses (section 1333). Art.194 goes one step further and also provides that the judge presiding over the partition may, taking into account the needs of the children who are entrusted to the custody of one spouse, decide to constitute a usufruct on part of the other spouse’s property in favour of the spouse having custody.

For private educational use only. Any other use is strictly prohibited under Maltese law and international treaties. The article does not purport to give any legal advice.