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?
Under the statutory matrimonial property regime, each spouse retains the property which belonged to him/her before the marriage, as well as the property he/she acquires during the marriage.
Everything acquired during the marriage by the spouses together, or by one of them, but from the resources of both spouses, or with the assistance of the actions of the other spouse, is the joint property of both spouses; in case of uncertainty, it shall be presumed that such property belongs equally to both spouses (Art. 89 CC).
The separate property of each spouse is:
- property owned by a spouse before the marriage, or property the spouses have, by contract, designated as separate property;
- assets which serve the personal use of one spouse, or are required for his/her independent work;
- property which was acquired gratuitously during the marriage by one of the spouses;
- income from the separate property of a spouse that is not assigned to the needs of the family or the joint household; and
- property that replaces the property referred to in the previous paragraphs (1-4) (Art. 91 CC).
2.2. Are there legal assumptions concerning the attribution of property?
The burden of establishing that certain property is separate shall lie upon the spouse who asserts such. The fact that immovable property is the separate property of one spouse shall be recorded in the Land Register.
In case of any doubt, it is assumed that the joint property is owned by both spouses in equal shares.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
There are no rules requiring an inventory of assets to be established.
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?
The spouses can freely administer and use their separate property during the marriage (Art. 90 para. 1 CC).
The spouses shall jointly administer and use their joint property, but upon agreement between them, it can also be administered by one of them alone. The disposal of this property by one spouse requires consent from the other spouse (Art. 90 para. 2 CC).
In the interests of third parties, it is assumed that disposal of movable property received such consent, except for cases when the third party knew or should have known that the consent was not in place or when the property of which one spouse disposed obviously belonged to the other spouse.
2.5. Are any legal transactions made by one spouse also binding on the other?
For obligations regarding family or joint household needs that have been incurred by one of the spouses, the other spouse shall be liable with his/her separate property only if the consideration for such obligations has been used for family and joint household needs (Art. 96 para. 2 CC).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
The property of one spouse may not be used to cover the liabilities of the other spouse. If due to the debt of one spouse enforcement proceedings are started against the separate property of the other spouse, the latter may request that his/her property is released from the proceedings (Art. 100 CC). If for the payment of one spouse’s debts the joint property is used, the other spouse may request division of property or release of his/her part from the enforcement proceedings.
The spouses are liable with the joint property and, if that is not sufficient, with their separate property for obligations that they have entered into jointly for family or joint household needs (Art. 96 para. 1 CC). For obligations regarding family or joint household needs that have been entered into by one of the spouses, such spouse shall be liable with his/her separate property if the joint property of the spouses does not suffice. For these obligations, the other spouse shall be liable with his/her separate property only if the consideration for such obligations has been used for family and joint household needs (Art. 96 para. 2 CC).
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