The main amendment that the new Civil and Commercial Code (the “CCC”) introduce to the matrimonial property regime is that, based on the principle of free will, the future spouses have now the possibility of opting, by entering into marriage conventions (the “Conventions”), between (i) a shared property regime, or (ii) a separate property regime. Section 463 of the CCC establishes that in the event that no convention is made or the convention does not set forth any provision regarding the property regime, the traditional shared property regime will be applicable (Section 463).
The Argentinean Civil Code, in force until August 1st, 2015, characterized the marriage property regime as the formation of a mass of goods that, upon termination of marriage, would be shared between the spouses. In which case, each of them would have a common expectation on the acquired goods. The Civil Code provided a legal, imperative and immutable regime. Prenuptial conventions were allowed only in the situations set forth in the civil code, which did not include the right to opt for a particular regime.
In accordance with Section 446 of the CCC, Conventions may be created for the purpose of: (i) designation and appraisal of the goods that each of the future spouses bring to the marriage, (ii) admission of debts, (iii) donations made between each other and (iv) option chosen taking into account the regimes contemplated in the CCC. The abovementioned section introduced the possibility for future spouses to enter into marriage conventions, but at the same time, it limits the scope of such agreements.
Section 448 of the CCC provides that in order for the Conventions to be valid, they must be executed by a notarially recorded instrument. Moreover, for the said conventions to be effective against third parties, the marriage certificate must include a note in the margin specifying the regime chosen.
In the event that the spouses decide to change the regime, the amendment must also be made by convention and by a notarially recorded instrument. In addition, the spouses must be married for at least one year (Section 449). In the event that there are creditors affected by this change, they will have one year to oppose, counting as from the time they became aware of the change.
- Regime of shared property.
Notwithstanding some changes, the new regime of shared property is still characterized by the distinction between personal assets and shared property. Each spouse is not entitled to receive any personal assets belonging to the other spouse upon dissolution of the marital partnership. On the other hand, shared property must be shared because it is presumed that the acquisition of the said assets was jointly made. Each spouse is liable vis-à-vis their creditors with their own assets and the shared property acquired by them. For the cost of maintenance and repair of shared property, the spouse is also liable for the debts he/she did not incur the debt, but only with his or her shared property.
Section 464 of the CCC sets forth a list of personal assets including, among others, assets that each spouse owns at the moment marriage was solemnized, assets acquired after marriage either by inheritance, legacy or gift. It should be noted that if such assets were jointly acquired, they will be deemed personal assets in equal proportion. This is the reason why it is so important to specify in the marital agreements which are the assets that each spouse contributes to marriage.
As a general rule, all assets that are not personal will be shared. Section 465 of the CCC establishes a list of shared property, including, among others, assets acquired at random games, proceeds resulting from the profession of each spouse, and assets acquired after marriage whose right has vested prior to divorce.
Each spouse is entitled to the full management and disposal of his/her personal assets. However, the management and disposal of shared property belongs to the spouse that has acquired them. The exception to this rule is the consent of the other spouse for transferring or taking out mortgages on recorded shared property, shares of stock or businesses.
- Separate property regime.
The main amendment of the CCC is the regime of separate property. Through this regime, the spouses maintain the full management and disposal of their personal assets, and each of them is liable for the debts they incurred, except those incurred by one of the spouses to pay for ordinary household needs, or the maintenance and education of their children (Section 461). It should be noted that only in these cases the spouses are jointly liable. The regime terminates upon dissolution of marriage or by modifying the regime agreed on between the spouses. Once marriage is dissolved, the undivided property, which could lead to conflict of interests, will be divided in accordance with the provisions regarding inheritances set forth in the CCC.
- Provisions common to both regimes.
Notwithstanding the differences between the two regimes, there are several provisions in common, such as: the duty of contribution and support between spouses, household and common children, the need for spousal consent to dispose of the rights related to family housing, mandates between spouses to represent each other, and legal representation when one spouse is absent or unable to express their will.
Moreover, it should be noted that the termination of marriage under either the shared property or the separate property regime, will result from the dissolution of the marriage, or by modifying the regime agreed on between the spouses.
The amendments concerning the marriage property regime included in the CCC give individuals greater freedom in matters of management and disposal of property. The spouses-to-be may choose among two different property regimes, carrying different consequences. The new Civil and Commercial Code allows for the future spouses to protect their personal property and keep it away from the marital partnership.