Prenup taboo shows Maltese couples still favour equality in marriage

Some things are still sacred it seems. Despite the social effects on marriage that were expected from the introduction of divorce in 2011, one taboo item for Maltese couples appears to be the prenuptial agreement - a staple, pre-marital contract for wealthy Americans portrayed in television soaps.

'Prenups' as they are better known, are still a rare occurrence despite the constant rate of marital break-ups in Maltese society, according to lawyers and notaries this newspaper spoke to.

"A prenuptial agreement is a binding contract entered into by two spouses before they tie the knot. It's a contract that regulates the pre-owned assets of the spouses, and dictates how and by whom it is managed and most importantly, how the assets acquired during marriage, would be divided in the event of marital breakdown," Labour MP Deborah Schembri explains.

Before being elected MP in 2013, Schembri, a family lawyer, campaigned for the introduction of divorce as the face of the pro-divorce movement.

But as she says, the perception amongst a predominantly Roman Catholic society that prenups are taboo, means that Maltese couples believe the equal division of the assets acquired during marriage, is still a fair settlement.

Overseas, prenups have flourished as couples try to safeguard their assets or secure their guardianship of children from previous marriages, segregating debts and bank accounts, and protect their properties in case of separation of divorce.

A smaller trend of prenups in Malta is apparently restricted only to a select, wealthy group of individuals, with society at large still applying the community of acquests, or the equal division of assets, as the main matrimonial regime in the event of separation of divorce.

"Prenups might be beneficial to certain couples, particularly spouses who are economically independent and those looking to safeguard their assets," family lawyer Ramona Frendo told MaltaToday.

This is evident in the increase of prenuptial agreements amongst self-employed businesspersons, Frendo says, enabling them to exempt their equal half from incurring liability in the case of bankruptcy.

"At times, particularly in the case of self-employed, the community of acquests can be unfair as the husband or wife would have to pay for the expenses racked up by the other spouse. Conversely, it can be unfair in the case of a husband paying a home loan on his own.

"If the assets were to be equally divided between the spouses, it would be extremely unfair on the husband which in the event of having a prenuptial agreement would avoid consequences," Frendo argued.

"On the other hand, for housewives or financially-dependent spouses, prenuptial agreements are not ideal as they risk ending up with nothing," she said.

Notary Stephen Thake echoes this feeling, saying that spouses who opt to stay at home to take care of children, tend to get the short end of the stick if their marriage is regulated by a prenuptial agreement.

"In the event of marital breakdown, the prenuptial agreements do not acknowledge the value of such spouses, as they take into account earlier contracts," Thake explains.

"On the other hand, the community of acquests - which is widely deemed as fair by Maltese couples - acknowledges the contribution of housewives which is nevertheless deemed as fundamental for the wellbeing of the family.

"Instead spouses may protect their assets by registering them on an independent company, which would in turn mean that the other spouse would not qualify for them."