Judicial separation of community of acquests

A Reader's husband seems to be mismanaging the administration of the community of acquests existing between the spouses, and is jeopardising the interests of the community and the needs of the family. Reader wishes to pursue the necessary legal steps to divide the management of the community of acquests without having to separate from her husband.

What is the Reader's position at law?

According to the law, Reader may file proceedings before the competent court requesting a judicial separation of the community of acquests.

In doing so, although the Reader would still remain married to her husband, she would no longer have to share the community of acquests with him - that is, her property and income shall be kept separate from that of her husband.

Section 1332(1) of the Civil Code provides that the judicial separation of property may be pronounced where the disordered state of affairs of one spouse or his or her conduct in relation to the administration of the acquests jeopardises the interests of the community of acquests, the family or of the spouse requesting the judicial separation of property.

In the judgment pronouncing the judicial separation of the spouses' property, the court shall direct that the community of acquests between the spouses shall cease as from the day on which the judgment becomes a res judicata.

The court may, however, without prejudice to any right legally acquired by any third party, direct that the judgment shall operate retrospectively to the date of the filing of the judicial act introducing the cause upon which judgment is given.

Reader should be aware that the creditors of either spouse or of the community of acquests may impeach the judicial separation pronounced by the court, even though it may have been given effect to, if the separation has been obtained in fraud of their rights.

In fact, the court may, where in its opinion circumstances so warrant, direct that the property comprised in the community of acquests be not partitioned before the lapse of this period after the cessation of the community of acquests as it may determine.

A demand for the judicial separation of property shall not stay any action enforcing any debt of the community of acquests. What the law is contemplating here are preventive measures not to allow spouses to request the separation of the property constituting the community of acquests as a means of defrauding any creditors of either spouse or of the community.

The reasons for requesting such a separation must be those described above, that is bad administration which is jeopardising the community, the family or the other spouse.

Finally, any judgment ordering the judicial separation of property shall not be operative against third parties, except from the day on which this judgment will have been registered in the Public Registry.

Send your legal problems, of general public interest, with your name and address, to: The Lawyer, c/o The Sunday Times, PO Box 328, Valletta CMR 01 (fax 2124-0806, e-mail; sunday@timesofmalta.com).