Younger generations are becoming more aware of the importance of pre-nuptial agreements, and are viewing them as financial planning tools, which provide the couple clarity, trust and peace of mind when it comes to asset management post-marriage. It is far more convenient to discuss such matters ahead of marriage, in an amicable scenario, rather than in a litigious setting, in contemplation of legal separation or divorce. These agreements encourage dialogue on the couple’s finances, with the aim of clarifying financial responsibilities. It aims to protect business assets and family inheritances, as well as promote transparency about any existing debts or liabilities.

Articles 1236 – 1247 of the Civil Code govern the right of spouses to enter into a marriage agreement that differs from the default regime of the community of acquests. While spouses are free to adopt an alternative regime through a prenuptial agreement, such agreements must comply with the law, and cannot be contrary to morals.

A pre-nuptial agreement will be deemed invalid if it seeks to establish ‘a head of family’, or it contains derogations of any of the rights deriving from parental authority, or of provision relating to minority or of any prohibitory rule of law. Furthermore, spouses are not permitted to use such agreements to alter the legal order of succession regarding their children or descendants, nor to regulate succession matters between the children themselves. Interestingly however, the law permits for spouses to stipulate that all children or any of them are to be brought up in the religion of either spouse.

The law further permits variations or counter-declarations to a marriage contract. If such changes are made prior to marriage, only the consent of both parties is required. However, once the marriage has been celebrated, any amendments to the marriage contract requires authorisation from Court.

A valid pre-nuptial agreement in Malta must be drawn up by a Notary, by virtue of a public deed and will not be operative in regard to third parties unless it is  registered in the Public Registry. This registration is essential to render the agreement enforceable. As a binding legal instrument, a pre-nuptial agreement requires attention to substance and procedure. A key component to the process is full financial disclosure by both parties, following which the parties can agree on clear, specific terms regarding the division of assets and property, allocation of debts and liabilities and management of financial responsibilities during marriage. It is strongly encouraged that both parties seek separate legal advice for each party to be fully informed of their rights and obligations, to avoid the possibility of the agreement being contested later on the grounds of defective or uninformed consent.

In practice, a pre-nuptial agreement is signed before a Notary at least one or two months before the wedding, to ensure that the agreement is duly registered in the Public Registry in time prior to marriage. Once registered, it is advisable that each party retains certified copies of the agreement, which may be required by banks, financial institutions, or other authorities during the course of the marriage or in the event of separation.

Under Maltese law, spouses are allowed to change their matrimonial property regime during the course of their marraige. In such instances, they can enter into a marriage contract to dissolve the community of acquests and instead adopt either the separation of estates or the community of residue under separate administration. Unlike a pre-nuptial agreement, prior to signing the deed before the Notary, the spouses must submit an application in Court together with a copy of the draft post-nuptial agreement, requesting Court authorisation. Apart from ensuring that the proposed draft contains lawful terms, the Court further ensures that the rights of the spouses’ children or of third parties are not effected.

The utility of pre-nuptial agreements is no longer seen as relevant only for the wealthy or overly cautious; instead they are increasingly regarded as a practical way to establish financial transparency between future spouses. In Malta’s evolving social and legal context, a pre-nuptial agreement allows couples to chose their matrimonial regime before entering into marriage promoting openness and meaningful dialogue – through this exercise, where assets, income, debts and financial responsibilities are outlined and discussed between the parties, one would also be reducing potential future conflict, and cultivating a legal and emotional foundation of the marriage.