5 What are the consequences of divorce/separation?
Divorce or separation brings the community of acquisitions regime to an end. The result is the dissolution and liquidation of the community property (Art. 1392 CC). Divorce also brings the marriage to an end.
5.1. How is the property (rights in rem) divided?
The property is divided as follows. First, an inventory is made (Art. 1396 CC), both of the assets (Art. 1397 CC) and the liabilities (Art. 1398 CC). Once this has been completed, first the community debts are paid, in cash or community property (Art. 1399-1400 CC). Creditors retain their rights until full payment (Art. 1401 CC). After payment of creditors, compensation and reimbursements due to each spouse are paid (Art. 1403 CC), and any remainder is divided equally between the husband and the wife or their heirs (Art. 1404 CC).
Excluded from the division are personal assets, which cannot be divided since they belong to their owner. They are listed in Article 1346 CC.
The family home, despite being excluded from the division of assets if it belongs to one of the spouses, may be awarded by the courts to the other spouse if the latter depends on its continued use to secure his/her vital needs, or when a common child has a substantial need for its continued use (Art. 96 CC).
5.2. Who is liable for existing debts after the divorce/separation?
5.3. Does one spouse have a claim to an equalisation payment?
If separation or divorce produces an adverse economic imbalance to one of the spouses, the disadvantaged spouse will be entitled to compensation, which may consist of temporary or open-ended maintenance payments or a single payment. The compensation may be agreed by the spouses in a regulating agreement approved by the judge, or in the absence of such agreement may be determined by the judge, who will take into account certain circumstances (Art. 97 CC).In addition, a spouse who has acted in good faith is entitled to compensation in cases where the marriage is annulled (Art. 98 CC). Maintenance payments may be modified in the event of substantial changes in circumstances (Art. 100 CC). The right to maintenance may also be lost in certain circumstances (Art. 101 CC).
5.3.1. In case of a property regime of the community of surplus:
- Does the claim have to be satisfied by means of a payment or in kind?
- How is the claim assessed?
- What is the amount of the equalisation payment?
- When is the claim prescribed?
In the case of community of acquisitions, the settlement of a claim for compensation as well as its calculation, payment and duration are governed by the provisions described in section 5.3.
5.3.2. In other cases (not community of surplus). Which ones?
The same rules (in section 5.3.) apply to the other matrimonial property systems.
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