2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
There are two systems regulating the matrimonial property of spouses:
a) The separation of property/participation in acquisitions system (Art. 1397-1402 HCC):
This system applies if the spouses have not concluded a contract. The separation of property/participation in acquisitions system (Art. 1397 HCC) establishes a rule whereby the individual property of the spouses remains unaffected by the marriage. The property which the spouses held before their marriage and which they acquire after it continue to constitute their separate property and they are each individually liable for their own debts with their separate property. In case of dissolution of the marriage, however, each spouse is entitled to participate in the augmentation of the property of the other spouse which has occurred since the marriage was entered into if he/she has contributed to this augmentation (see under 5.1.).
b) The community of property system (Art. 1403-1415 HCC):
The community of property system, which is not at all wide-spread, means that the spouses opt to establish a community of property with equal shares in each other's property, but without a right for each spouse to dispose of this share in the property.
Assets covered by the community of property system (Art. 1405 HCC):
Where the contract contains no provision about the extent of the community of property system, this regime will cover all assets which each of the spouses acquires non-gratuitously during the marriage, apart from income derived from property which that spouse owned before the marriage. The common property does not include any of the following, even if acquired non-gratuitously: 1. the assets of each of the spouses intended strictly for personal use or the carrying on of his/her profession and the relevant appurtenances, 2. claims specified in Articles 464 and 465 HCC (claims that due to their nature are so closely related to one person that they cannot be delegated or separated from the person or claims that have been agreed as not to be subjected to delegation) and 3. intellectual property rights.
2.2. Are there legal assumptions concerning the attribution of property?
An asset is presumed to be part of the common property if nothing else is proved.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
The spouses are not obliged to prepare an inventory of assets.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
- Under the separation of property/participation in acquisitions system, each spouse is responsible for managing and disposing of his/her own property. However, one of the spouses may grant the other spouse the power to manage his/her individual property, without any accountability or obligation to hand over income deriving from the management of those assets, where terms to the contrary have not been agreed. Such income is considered to be part of the obligation to contribute to meeting the needs of the family (Art. 1399 HCC).
- Under the community of property system, the question of who will manage the common property and who has the right to dispose of it is a matter to be agreed by the spouses, as is the question of whether there should be a right of consent in the case where it is agreed that one of the spouses will manage the assets.
2.5. Are any legal transactions made by one spouse also binding on the other?
Under both systems, in principle, legal transactions entered into by one spouse are only binding on that spouse. However, in case of the community of property regime, for debts incurred by one spouse during the marriage which relate to the management of the common property and to the needs of the family also the non-debtor spouse is subsidiarily liable (see under 2.6.b)).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
- Under the separation of property/participation in acquisitions system, only the spouse who incurred debts during the marriage is responsible for them. Creditors can only satisfy their claims from the personal assets of the debtor spouse.
- Under the community of property regime, responsibility for debts incurred during the marriage which relate to the management of the common property and to the needs of the family lies with the debtor spouse and the creditors can satisfy their claims from his/her personal property and the common property (and, if this property is not sufficient, from the personal property of the non-debtor spouse, up to half the value of their claim, Art. 1410 HCC). In the case of personal debts and debts unrelated to the debtor spouse's power to manage the common property, creditors can satisfy their claims from the personal property of the debtor spouse, and only where this property is insufficient may they satisfy their claims from the common property, and even then only up to half of its value (Art. 1408-1409 HCC).
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