Judicial separation of community of acquests

A Reader's husband has been, for the past three years, mismanaging the administration of the community of acquests, jeopardising the interests of the family and Reader's own personal interests.

Besides, the husband is no longer contributing his financial share to the needs of the family and, consequently, the family is living on the wife's income alone. Reader wishes to take the necessary steps to divide the community of acquests.

What are the legal steps Reader should pursue?

According to the law, Reader may file proceedings before the competent court requesting a judicial separation of the community of acquests. This has nothing to do with a personal separation from bed and board between the Reader and her spouse.

In other words, although Reader still remains married to her husband, she may request that she longer shares in the community with her husband - that is, her property and income will be kept separate from that of her husband.

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 the spouse requesting the judicial separation of property.

Furthermore, the judicial separation may also be pronounced where one of the spouses fails substantially in his or her duty to contribute to the needs of the family.

In the judgment pronouncing the judicial separation of property of the spouses, the court will direct that the community of acquests between the spouses will cease 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 will operate retrospectively to the date of the filing of the judicial act introducing the cause on 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 such separation has been obtained in fraud of their rights. In fact, the court may, wherein its opinion so warrants, direct that the property comprised in the community of acquests not be partitioned before the lapse of a period after the cessation of the community of acquests, as it may determine.

A demand for the judicial separation of property will not stay any action enforcing any debt of the community of acquests. The law provides for preventive measures so as not to allow spouses to request the separation of the community of acquests as a means of defrauding any creditors of either spouse or of the community.

As already reiterated, the reasons for requesting this separation must be on the ground of bad administration which is jeopardising the community, the family or the other spouse.

Finally, any judgment ordering the judicial separation of property will 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, together with your name and address, to: The Lawyer, c/o The Sunday Times, PO Box 328, Valletta CMR 01 (fax: 2124-0806).