Would making 'separation of estates' the ‘de facto’ matrimonial regime enhance notarial efficiency?

Abstract

This report explores the matrimonial regime of 'Separation of Estates,' especially the possibility of making it the default matrimonial regime. In Malta, the default matrimonial regime is the Community of Acquests, where assets and debts acquired during marriage are jointly owned by both spouses. However, Maltese law also allows couples to opt for a 'Separation of Estates' regime through an ante-nuptial or post-nuptial agreement executed by a notary public. Under this regime, each spouse retains independent control over their property, and any debts incurred are the sole responsibility of the respective spouse. This setup provides financial autonomy and protects the other spouse’s property from creditors. The report's research question, that is, "Would Making 'Separation of Estates' the de facto Matrimonial Regime enhance notarial efficiency?" examines the relevance of the Community of Acquests in the present, particularly concerning the notary public's role in drafting prenuptial and post-nuptial agreements and also the notary public’s everyday functions in relation to this institute of law. The research aims to determine whether making the 'Separation of Estates' regime the default legal framework could streamline notarial practices and improve clarity and efficiency within the notarial profession. The report is structured into four main chapters. After the introduction, the second chapter evaluates the historical development and current legislation governing matrimonial regimes, whilst it continues by analysing and focusing on the notary public's evolving role in relation to matrimonial regimes. In the subsequent chapter, the author analyses the potential benefits and challenges that notaries may encounter if the 'Separation of Estates' was to become the de facto marital regime, including implications for daily notarial functions and the broader legal and financial landscape for married couples.