Is agreeing on who gets what in case of break-up a wise move? Or does it signal a death knell for the upcoming nuptials? Helen Raine speaks to the experts.
Pre-nuptial agreement. The very phrase is redolent of celebrities making absurdly huge claims on their partner’s equally massive fortune. Maybe that’s why we tend to think that pre-nups are just for the mega rich and lesser mortals should just tie the knot and hope it’s till death us do part.
It’s the sheer excesses of publicised pre-nup conditions that put people off. www.legalzoom.com has some marvellous examples of the depths to which people can sink at the lawyer’s office. Husbands have been subjected to clauses banning them from watching more than one Sunday football game. Wives have been prevented from having their mothers sleep over at the house.
Silly season for celebrities
Celebrities seem particularly good at drafting silly clauses (or perhaps their lawyers are just more hawkish). www.hollyscoop.com claims that actress Jessica Biel will get €370,000 from husband Justin Timberlake if she has to divorce him due to cheating.
Reality TV star Khloe Kardashian will apparently get €370,000 for each year she was married to Lamar Odom (four) and “€18,000 a month in support, their house, a new car at the end of every lease cycle, almost €4,000 a month for shopping, €730 for beauty care, and courtside seats at Lakers games”. And if Nicole Kidman’s husband Keith Urban relapses into drug abuse, he’ll get precisely nothing.
So what exactly is a pre-nup in Malta?
Notary Maria Bonavia explains that in Malta, upon entering marriage, a ‘community’ is created. “The Civil Code of the Laws of Malta regulates the economic relationship of this community, providing three types of marriage contracts [known as matrimonial regimes], namely: the Community of Acquests, the Separation of Estates and the Community of Residue under Separate Administration (Corsa).”
She says that if a husband and wife-to-be do not specify otherwise, then the Community of Acquests will apply automatically. That means that in the event of a legal separation or a divorce, everything acquired by the couple during the marriage is split by half. Property bought before marriage, inheritances and donations are excluded from the Community of Acquests.
However, she explains that couples can also choose to make a pre-nuptial contract with provision for a Separation of Estates, whereby each spouse retains full control over any possessions they had before and after marriage.
They can also choose Corsa, whereby the property acquired by each spouse during the marriage is held and administered by the spouse who acquired it as if he or she were the exclusive owner. At the termination of Corsa, the final residues of the spouses remaining after deduction of debts are equalised.
So a pre-nup is a contract whereby spouses choose not to have the Community of Acquests and opt for Separation of Estates or Corsa instead.
Lawyers can advise a couple on their pre-nups and notaries draw up the pre-nups according to the spouses’ choice of one of the three matrimonial regimes. The pre-nup is finalised by means of a contract registered in the Public Registry.
Pre-nups don’t have to be passion killers
Notary Bonavia feels that entering into a pre-nuptial agreement does not mean that a couple is headed for divorce, but rather that: “The couple would be discussing and planning their economic relationship within marriage, which also means that they will be responsibly entering marriage with a clear mindset to protect their family home and investments.”
She finds that most Maltese couples usually have a vague idea that once they get married, then everything that they acquire (work income, property, even incurring debts) would be divided into two unless they specify otherwise before marriage.
She says that many people do not realise the full implications of that agreement but adds, “the ‘Community of Acquests’ would best suit a couple whereby one of the spouses is financially dependent on the other, such as housewives who still contribute to the well-being of the family.”
Bonavia notes that pre-nuptial agreements would also benefit spouses with different religions. The law allows for such couples to stipulate in a pre-nuptial agreement “that all the children, or any of them, shall be brought up in the religion of either of the spouses”.
Lawyer Josette Sultana, founder of www.sultanalegal.com, is also a supporter of pre-nups because she’s seen the aftermath when couples don’t have them. “Relationships can come to an end,” she says, “and besides the emotional issues that couples have to tackle, material issues are many times the cause of a lot of arguments as well as lengthy and costly proceedings.”
Couples may choose to retain full control over any possessions they had before and after marriage
Business as usual
When it comes to couples with business interests, a pre-nup becomes even more important. Notary Bonavia says: “Having one of the spouses engaged in a commercial activity, it would be wise for the couple to opt for the Separation of Estates by means of a pre-nuptial agreement. In the case where one of the spouses incurs a debt that cannot be paid, the other spouse will not have to make good for that debt by the fruit of his or her work.”
Critically, she explains that without a pre-nup, the Community of Acquests applies and creditors have a right to turn onto the spouses’ assets to get paid, leading to the impoverishment of the family’s financial situation.
A watertight agreement
In the UK, pre-nups often aren’t worth the paper they are written on as they can be thrown out by a court.
This is set to change in 2015 as the Law Commission intends to enshrine pre-nuptial agreements into law as part of major changes to UK divorce laws.
However, in Malta, Dr Sultana notes that: “A pre-nup is a public deed and … will stand up in court as long as all the formalities have been adhered to. If one or both partners is from overseas, the rules of international law might kick in.”
But when it comes to property at least, the pre-nup will still hold. “Regarding immovable property, it is the law of the country where the property is situated which regulates the issue so in that case, for sure the Maltese law will be the applicable law. This is very complex so every issue has to be tackled separately.”
If a couple’s situation changes, Dr Sultana says, then “the pre-nup can be overridden if the spouses make another agreement authorised by a competent court. Again this agreement will be a public deed”. However, she says, “divorce on its own cannot alter the contents of a pre-nup.”
For richer or poorer
So the lawyers and notaries recommend a pre-nup and their advice makes sense. But for ordinary couples, there’s perhaps something slightly distasteful about ring-fencing what belongs to whom before you’ve even ventured down the aisle.
One Maltese woman summed up the feelings of many on this subject. She said that she didn’t bother with a pre-nup when she got married and she’s seen that such agreements cause trouble with people who have money.
And she added: “In all honesty, I believe this pre-nup business is all about mistrust. It seems that the more one has, the more possessive one is of belongings. My husband and I started out with nothing but we trusted each other. Even now, although we have a house and possessions, we would never make such an agreement.”
And that attitude might lead to a happier marriage. Bradford Wilcox of the US National Marriage Project told the New York Times that, “if you’re thinking about a pre-nup, or your intended is pushing a pre-nup on you, you might as well go ahead and just cancel the wedding.
“Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money.”
And he has found that this approach will mean you are less likely to divorce and will be happier in your relationship. “Married couples who do not pool their income are more likely to end up in divorce court,” he says.
So unless your partner is trying to protect you from incurring debts from his or her business, if a pre-nup comes up, perhaps a faint alarm bell should start ringing.