Spouses wed abroad who settle in Malta share acquests

The Court of Appeal on 29 January 2026 allowed a wife's appeal and held that a house built in Malta forms part of the community of acquests of a couple who married in Australia. Chief Justice Mark Chetcuti, Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli revoked a partial judgment of the Court of Magistrates (Gozo) (Superior Jurisdiction) of 27 September 2024. The court held that article 1316(2) of the Civil Code (Chapter 16 of the Laws of Malta) applied and that the burden of proving a change of domicile lay on the husband.

The facts

Z1, the wife, lives abroad and sued through a lawyer acting as her mandatary, that is, a person authorised to act in her name. She asked the court to liquidate and divide the community of acquests with Z2, her former husband. Both were born in Malta to Maltese parents. They married in Australia, later separated and obtained a divorce from an Australian family court.

The family moved to Malta with the children for some years and then returned to Australia. They later came back for a few more years and left again. While living in Malta, the husband bought a relative's share of family land, and after a later partition the couple built their home on it.

The first court held that the community of acquests did not apply. It reasoned that the wife had not proved a Maltese domicile after a marriage abroad, that she had not signed the deed and that she had produced no proof of the divorce or of its registration in Malta. The husband filed no reply to the appeal.

What the court held

The court held that article 1316(2) brings the community of acquests between people who marry abroad and then come to live in Malta, for property they acquire after arriving. Read with article 1321(1), which presumes property of the spouses to be acquests unless the contrary is proved, it covered the land bought during the marriage, although the deed was in the husband's name alone.

The court also took up domicile, because the husband had raised it. Where Maltese law is silent, Maltese courts apply English principles of private international law. Every person has a domicile of origin, and a change needs both residence in another country and the intention to stay there permanently. The burden lies on the party who alleges the change.

Both parties' domicile of origin was Malta. Long years in Australia, and a wedding there, did not change it, because their time abroad was “aktar dettat miċ-ċirkostanzi finanzjarji, milli għażla ħielsa li jibdlu d-domiċilju tagħhom” (dictated more by financial circumstances than by a free choice to change their domicile).

Shipping their belongings to Malta, putting the children in local schools and building the house all pointed to an intention to settle. It was for the husband to prove otherwise, and he brought no clear and precise facts to do so.

The court added that immovable property is normally governed by the law of the place where it lies, so Maltese law ruled the community over the house. No proof of Australian law had been brought.

On the divorce, the court held that the first court should not have decided the registration point at all. The parties had limited that stage, in the minutes of a sitting, to whether the house formed part of the community, and the wife had no chance to make submissions on it.

In any case, the court held that a foreign divorce takes effect between the parties from the judgment. Registration under article 33 of the Marriage Act (Chapter 255) only seals its recognition. The husband himself stated in his affidavit that he had remarried.

The court declared that the community of acquests applies between the parties and includes the house. It ordered the husband to pay the costs of both instances and sent the case back to the first court to continue.

Why it matters

For couples who married abroad and later returned, the regime over property in Malta turns on article 1316(2) and on domicile. The spouse who says the couple abandoned a Maltese domicile of origin must prove it with clear facts, and conduct weighs more than what a party says about intention.

A limit agreed in the minutes of a sitting also binds the court to the question the parties put before it.

Where it sits

Article 1316(1) makes the community of acquests the default regime for a marriage celebrated in Malta, unless the spouses agree otherwise by public deed. Subarticle (2) extends it to spouses married abroad who come to live in Malta, but only for property acquired after they arrive. The first court read those words as requiring a change of domicile. The Court of Appeal found for the wife both on the words of the article and on domicile of origin.

The court drew on the Court of Appeal (19 October 1923) and the Court of Appeal (22 October 1937) for applying English private international law. It cited the Court of Appeal (12 December 1979) and the Court of Appeal (28 April 1988) on the burden of proving a change of domicile, and the Privy Council (1889) for preferring conduct to declarations of intention.

For the law of the place where property lies, and for the effect of registering a foreign divorce, it cited the Court of Appeal (27 February 2015).

Source

Court of Appeal, Z1 vs Z2, 146/2006/3, 29 January 2026.