Community property before and after Act XVIII of 2004

Abstract

This thesis shall focus on the institute of Community Property which has been recently amended. The first part of chapter one introduces the topic on community property by stating the elements of this institute, the reciprocal rights and obligations and the cessation of community property. The second part of chapter one restates the position of Maltese law in regard to community property and identifies the difficulties and uncertainties under this institute. Chapter two focuses on the amendments introduced by Act XVIII of 2004 in this sphere of law by stating the new law and analyzing its effects. The prime concern of this chapter is to manifest the effects of these amendments and how these changed the situation under community property. Also it examines the effects of the said amendments in relation to various established principles and how these were affected. Besides the procedure contemplated in article 495A of the Civil Code shall be analysed and compared with the procedure before the amendments. Chapter three specifically deals with the majority rule versus minority rights and obligations and serious prejudice. An examination of an objective and subjective tests shall be dealt with as they are fundamental for the application of the new procedure under article 495A. Also this chapter tries to establish a definition for serious prejudice, will it be possible to achieve? The various difficulties posed by the majority rule under article 495A(l) shall be examined too. Chapter four is a comparative analysis between Maltese law and Italian and French law. The aim of this chapter is to try to identify new rules and procedure which may enhance our legal system in this regard. The last chapter is an evaluation of the new amendments to determine how far reaching they actually were. Also it deals with various recommendations for any future amendments under community property.