Definitive global law guides offering comparative analysis from top-ranked lawyers
CHAMBERS GLOBAL PRACTICE GUIDES
Family Law 2026 Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Alex Carruthers Hughes Fowler Carruthers
Global Practice Guides
Family Law Contributing Editor Alex Carruthers Hughes Fowler Carruthers
2026
Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan
Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com
Copyright © 2026 Chambers and Partners
Contents
INTRODUCTION Contributed by Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers p.5
JAPAN Law and Practice p.149 Contributed by Tokyo Kokusai Partners Law Office Trends and Developments p.164 Contributed by Tokyo Kokusai Partners Law Office
ARGENTINA Law and Practice p.9 Contributed by McEWAN Trends and Developments p.19 Contributed by McEWAN AUSTRALIA Trends and Developments p.26 Contributed by Lander & Rogers
MALTA Law and Practice p.171 Contributed by 8Point Law
PORTUGAL Law and Practice p.182 Contributed by Rogério Alves & Associados
BELGIUM Law and Practice p.30 Contributed by Tiberghien
SINGAPORE Law and Practice p.190
Contributed by Bih Li & Lee LLP Trends and Developments p.203 Contributed by Bih Li & Lee LLP SOUTH AFRICA Law and Practice p.209 Contributed by Clarks Attorneys Contributed by Arbáizar Abogados Trends and Developments p.237 Contributed by Arbáizar Abogados SWITZERLAND Trends and Developments p.240 Contributed by Kellerhals Carrard SPAIN Law and Practice p.224
BRAZIL Law and Practice p.46
Contributed by Chieco Advogados Trends and Developments p.58 Contributed by MF Ejchel International Family Law CANADA Law and Practice p.63 Contributed by MacLean Law Trends and Developments p.81 Contributed by MacLean Law CHINA Law and Practice p.86 Contributed by King & Capital Law Firm Trends and Developments p.100 Contributed by King & Capital Law Firm ENGLAND & WALES Law and Practice p.107 Contributed by Levison Meltzer Pigott FINLAND Law and Practice p.122 Contributed by Pekka Tuunainen Attorneys Ltd
UAE Law and Practice p.247 Contributed by Awatif Mohammad Shoqi Advocates & Legal Consultancy Trends and Developments p.259 Contributed by Awatif Mohammad Shoqi Advocates & Legal Consultancy
UK – LONDON: PROVENANCE Trends and Developments p.265 Contributed by HCR Law UK – LONDON: PENSIONS Trends and Developments p.269 Contributed by HCR Law
GERMANY Law and Practice p.132
Contributed by MAYDELL FamilyLaw Trends and Developments p.144 Contributed by Raue
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Contents
UK – SOUTH WEST Trends and Developments p.273 Contributed by Birketts LLP USA – ARKANSAS Law and Practice p.279 Contributed by Bundy Trends and Developments p.286 Contributed by Bundy
USA – MASSACHUSETTS Law and Practice p.322 Contributed by Fitch Law Partners LLP Trends and Developments p.333 Contributed by Fitch Law Partners LLP
USA – MISSOURI Law and Practice p.339 Contributed by Bundy
USA – FLORIDA Law and Practice p.291
USA – NEW YORK Law and Practice p.345 Contributed by Schumann Law LLC USA – OKLAHOMA Law and Practice p.355 Contributed by Bundy Trends and Developments p.364 Contributed by Bundy
Contributed by Sasser, Cestero & Roy Trends and Developments p.307 Contributed by Sasser, Cestero & Roy
USA – INDIANA Law and Practice p.310 Contributed by Faegre Drinker Biddle & Reath LLP Trends and Developments p.319 Contributed by Faegre Drinker Biddle & Reath LLP
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INTRODUCTION
Contributed by: Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers
Hughes Fowler Carruthers has been based in Chan‑ cery Lane in the heart of legal London since 2001 and is widely regarded as one of London’s leading divorce and family law practices. All the partners are internationally known for the high standard of their work, and share a considerable breadth of experi ‑ ence which enables them to offer the full gamut of skills needed to navigate complex litigation, expert and discreet negotiation, and alternative forms of dispute resolution, to suit the individual demands of
each client. The solicitors’ work is conducted with a high degree of professionalism and dedication. All solicitors in the practice are members of Resolution. The firm is part of an extensive international family law network through memberships of the Internation ‑ al Academy of Family Lawyers and the International Bar Association. This means Hughes Fowler Carru ‑ thers can provide a full international service through the partners’ close connections worldwide.
Contributing Editor
Co-Authors
Alex Carruthers is a founding partner at Hughes Fowler Carruthers. He specialises in complex divorce and financial work and children’s work, particularly in international cases. His clients are high net worth individuals
Oliver Heeks joined Hughes Fowler Carruthers in 2024 after qualifying as a family solicitor at a leading firm in 2022. He is an associate solicitor and advises on a wide range of family law matters including divorce, financial
with complex legal issues, including trusts and jurisdictional disputes. Alex is highly commended in leading legal directories for his expertise, including in Chambers UK. He is recognised for his judgement and negotiation skills in offshore cases. Alex has been involved in numerous reported cases, most recently the case of BL v OR (2023) EWFC 229. He is also adept at alternative dispute resolution and is a qualified mediator and collaborative lawyer.
relief, emergency injunctions and private law children’s matters. Oliver is adept at working with both international and domestic clients from a wide range of backgrounds, including high net worth individuals. He regularly deals with complex financial disputes, often involving high-value business assets, offshore assets, trusts and inherited wealth.
Amber Raja joined Hughes Fowler Carruthers in 2024 and is a paralegal at the firm. Amber assists the partners and associates across the full spectrum of family law cases.
Hughes Fowler Carruthers Academy Court 94 Chancery Lane London WC2A 1DT England
Tel: +44 (020) 7421 8383 Fax: +44 (020) 7421 8383 Email: a.carruthers@hfclaw.com Web: www.hfclaw.com
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INTRODUCTION Contributed by: Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers
Family Law: A Global Overview Family law is an important part of a country’s legal and social fabric. The rules and norms of society are reflected in the laws that dictate what happens on relationship breakdown. As such, family law is an interesting insight into how a country views relation ‑ ships and the financial impact of their breakdown. This guide, hopefully, is not only useful for the professional when considering international aspects of family law but also provides an informative guide for the lay per ‑ son when considering how professionals deal with these issues in each country and an insight into the country’s society. Whilst the term “family law” is broad, it is most com ‑ monly interpreted as dealing with issues arising from relationship breakdown. This guide deals with three main areas arising from relationship breakdown. • Change in Status: If a relationship breaks down then, depending on the formal status of the parties, there may be a change in status going forward. For example, if the parties are married then there may be divorce proceedings or, in some countries, nul ‑ lity and judicial separation proceedings. Similarly, some countries have different forms of legal part ‑ nerships, eg, civil partnerships which are dissolved upon the relationship ending. Other, less formal arrangements, eg, cohabitation, may not require a change in legal status. • Financial Consequences: Inevitably, when a relationship breaks down, where there have been dependencies on either side, there will be financial consequences on its dissolution. • Children Arrangements. These issues are separate and distinct but there can be linkages between them – for example, if there is a formal dissolution of the status of the parties in one country then it is normally that country that deals with the financial consequences that arise. There is at least one notable exception to this rule, being Eng ‑ land and Wales, where the financial consequences of the breakdown of a marriage can be dealt with in that country even if the divorce itself happened abroad; however, that is the exception that proves the rule.
In some countries there are further linkages between these issues. For example, some jurisdictions provide for better or worse financial relief depending on the circumstances under which the relationship broke down. In Austria, for example, if there is a finding that one party is the cause of the breakdown of a rela ‑ tionship then the other party is entitled to significant maintenance. In most countries, children arrangements are normally kept separate from financial issues but clearly there are some linkages, eg, financial support for the benefit of children. Each of these areas is considered in more detail below. Change in status One of the most striking aspects in this area over the last ten years is the significant increase in the num ‑ ber of jurisdictions which recognise relationships that are between individuals of the same sex. Thirty or so years ago, there was no jurisdiction in the world that legally recognised those relationships but now the majority of jurisdictions in the world do so and, as a result, have to have in place laws to determine what will happen when such relationships break down. The sensitive nature of this evolution is a classic example of the trend which this overview highlights, namely that the law has to reflect the society in which it is embedded. As society has evolved, so too has the law. In countries where same-sex relationships are recognised, and therefore those jurisdictions deal with their breakdown, there can be differences between the legal terminology – whether it is a civil partner ‑ ship or a marriage and therefore whether it is a formal “divorce” – but the similarities normally outweigh the differences. Another change that has happened in some coun ‑ tries is the grounds on which a dissolution of the rela ‑ tionship can take place. In simplistic terms, there are generally two forms of “grounds” – in some countries the relationship can only be dissolved following the actions of the party who caused the breakdown. In other words, “fault” needs to be found. Some jurisdic ‑ tions are not “fault”-based and only require a period of time to have elapsed before a divorce is allowed, or
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INTRODUCTION Contributed by: Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers
a statement that the marriage has broken down. In at least one country (England and Wales) there has been a recent move away from a “fault-based” system to a non-fault-based system. In a global world, where parties move from country to country with ease, another issue that must be consid ‑ ered when advising on these matters is the jurisdiction in which proceedings can be issued to dissolve the relationship. In general, jurisdiction in all countries is founded either on the parties’ nationality (or in some countries their domicile) or residency. Given that some countries can have significantly dif ‑ ferent financial regimes on relationship breakdown, the question of whether a party can get divorced in dif ‑ ferent jurisdictions can be of the utmost importance. Deliberately choosing one country over another to issue proceedings has given rise to the colloquial term “divorce tourism”. This generates a multitude of legal issues that may arise, including how either jurisdiction deals with the claims of the competing jurisdiction and evolve into complicated and sophisticated legal disputes that can clog up the courts for many months or years. The money at stake for ultra-high net worth parties may, however, justify this expense. Financial consequences on relationship breakdown The difference in financial consequences if a couple’s finances are dealt with in different jurisdictions can be vast. The laws that determine the division of money may reflect the societal norms of the different coun ‑ tries. For example, where there is a sophisticated and well- funded welfare state which encourages mothers to go back to work after the birth of their child, there may not be laws for the provision of spousal maintenance on divorce because it is expected that the mother will be working anyway and supported by the state. The financial award for mothers in those countries might be vastly different from those countries where it has been expected that mothers looking after children at home are as productive as the person who goes out to
work and should be provided with support from their ex-partner to allow it to continue. There is a further fundamental difference in a number of countries around the world when considering the financial consequences of a relationship breakdown. In civil countries which use the Napoleonic Code or variations of it, upon relationship breakdown, the marital regime that the parties had entered into on their marriage comes to an end. And the law has to regulate how the assets are to be divided according to the marital regime and if there is any compensation to be paid as well as maintenance. On the other hand, in common law countries when the parties marry, they do not enter into a “marital regime”; instead, they continue to act as individuals but on the relationship breakdown there is an equita ‑ ble distribution of assets and incomes between them to reflect the fact that the relationship has come to an end. Furthermore, in a number of jurisdictions around the world (including those in the EU) there is a rule of “applicable law” whereby the court may not use its own native laws to determine how finances are to be distributed but instead may use laws from other countries. If the individuals are from a different type of regime (eg, a common law rather than a civil code country) then the court where the divorce is taking place will have to interpret how the different structure “works”. This may well lead to confusion and misin ‑ terpretation. Particular areas of contrast, as well as those involving capital distribution, are whether an ex-spouse should receive maintenance after the divorce has concluded and, if so, for how long, and the level of child support that must be paid by the parties. These are matters which can have significant differences in neighbouring countries, eg, Scotland (where there is very limited spousal support) and England and Wales (which is much more generous). Some countries have financial structures that are embedded within them and therefore relationship breakdown has developed ways of taking them into account and/or dealing with them. For example, trust
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INTRODUCTION Contributed by: Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers
structures are more easily dealt with in common law countries than civil code countries where they are less common. Childcare arrangements This is one of the most important and, at times, con ‑ troversial, areas that must be resolved on relationship breakdown. This guide sets out the general rules that the court will consider when dealing with this issue, including the weight that the child’s voice has in each country. One area not dealt with in detail is the reloca ‑ tion of children from one country to another, which is
about whether it is in society’s best interests for there to be open justice so that a light can be shone on the judicial process to cleanse it of any imperfections against the rights of the individual to have their per ‑ sonal affairs kept secret and their rights to a private family life protected. This is an issue which occurs in many areas of the law but is most acute in fam ‑ ily law given that the issues debated are extremely personal. In some jurisdictions, eg, California, it is acknowledged that the proceedings will be within the glare of publicity, whilst in a number of others, eg, in quite a number of EU countries, there are strict rules about publicity. This, like a number of issues dealt with in this guide, reflects the evolving society in each country and pro ‑ vides a snapshot of the present laws and norms of that society.
covered in a separate guide. Transparency in the courts
Finally, a hot topic of debate in a number of countries at the moment is transparency about the family court process. There is a fierce debate in many countries
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ARGENTINA
Brazil
Paraguay
Chile
Uruguay
Buenos Aires
Argentina
Law and Practice Contributed by: Herberto Robinson McEWAN
Contents 1. Divorce p.11
1.1 Grounds, Timeline, Service and Process p.11 1.2 Choice of Jurisdiction in Divorce Proceedings p.12 2. Financial Proceedings p.12
2.1 Choice of Jurisdiction in Financial Proceedings p.12 2.2 Service and Process in Financial Proceedings p.13 2.3 Division of Assets p.13 2.4 Spousal Maintenance p.14 2.5 Prenuptial and Postnuptial Agreements p.14 2.6 Cohabitation: Division of Assets Between Unmarried Couples p.14 2.7 Enforcement of Financial Orders p.15 2.8 Media Access and Transparency in Financial Proceedings p.15 2.9 ADR in Financial Matters p.15 3. Child Law p.15 3.1 Choice of Jurisdiction in Children Proceedings p.15 3.2 Living/Contact Arrangements and Child Maintenance p.15 3.3 Other Matters p.17 3.4 ADR in Child Law Matters p.17 3.5 Media Access and Transparency in Children Proceedings p.18
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ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
McEWAN is a pioneer in the provision of legal and tax services to private clients in Argentina. The firm’s lawyers and accountants have extensive experience of assisting ultra-high net worth individuals with all areas of tax and civil law, as well as assisting banks, private bankers, family offices, trust companies, in ‑ vestment banks and private equity funds. In addition to their vast knowledge of family law, McEWAN pro ‑ fessionals also have significant expertise in handling matters involving complex family conflicts. McEWAN is recognised for its work on succession and com ‑
plex tax litigation and addresses ADR concerning personal and family wealth issues within the scope of family law. Its services encompass integral family wealth planning (including planning for the protec ‑ tion of minors and vulnerable beneficiaries), crea ‑ tion of simple and complex trust structures, simple and complex probate proceedings, divorces and liquidation of shared/marital property, compensation agreements, prenuptial agreements, mediation pro ‑ ceedings, lawsuits and claims involving international structures, and preparation and drafting of wills.
Author
Herberto Robinson is a civil and corporate law attorney and a partner at McEWAN, with 20 years of experience representing families and their companies in a variety of cross- border transactions in Argentina and
Latin America. Herberto collaborates with individuals and families on structuring matters arising from the management of wealth during life and after death. He also assists clients with estate planning and family-business succession planning and has a depth of experience in family litigation matters.
Estudio McEwan Esmeralda 1061 PB C1007ABM Buenos Aires Argentina Tel: +54 11 7078 1112 Fax: +54 11 7078 1112
Email: info@estudiomcewan.com.ar Web: www.estudiomcewan.com.ar
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ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
1. Divorce 1.1 Grounds, Timeline, Service and Process In Argentina, there are neither grounds for terminating marriage nor a required period of personal separation before for filing a divorce. Argentina is a codified law jurisdiction. Its Civil and Commercial Code (CCC) has eliminated any form of fault-alleging by either of the spouses and, therefore, the possibility of initiating claims for damages (against the other spouse) is not allowed. Divorce Proceedings Either spouse may file, unilaterally or jointly, a divorce procedure. If a unilateral procedure has been filed, the parties may have an uncontested divorce. However, the judge will rule the same way as in a joint proce ‑ dure, as there are no grounds for divorce. Argentine law has recognised marriage between same-sex couples since 2010, so the same mari ‑ tal regime will apply in such cases. Adoption is also allowed for same-sex couples under the same terms as those required for heterosexual couples. Same-sex marriage and cohabitation have been recognised and enforced since 2015, with the sanction of the CCC. The divorce process is initiated by filing a petition with the court based on the principle of the last marital domicile. This can be done by both spouses together (joint petition) or by one spouse alone (unilateral peti ‑ tion). A divorce petition can be filed at any time after marriage, as there are no required separation periods or specific grounds needed to request a divorce. If both parties agree on the terms, the court can issue a divorce decree within a period of two to three months. The divorce becomes official once the court’s decision is registered in the Civil Registry of the jurisdiction where the marriage took place. The rule for service of divorce proceedings is the last effective marital domicile or the domicile of the defendant spouse, at the plaintiff spouse’s discretion. If one of the spouses does not have a domicile in Argentina, the action may be brought before the court of the last domicile they had within Argentina, provid ‑ ed the marriage was celebrated there. If the location
of the last marital domicile cannot be established, the general rules of jurisdiction will apply. Religious Marriages Religious marriages have no legal effects in Argentina. In the Catholic Church, there is no divorce or sepa ‑ ration. However, there is the annulment of marriage. Divorced Catholics can marry in the church only if it has been demonstrated through the church’s internal process that they are free to marry. This also applies to non-Catholics who wish to marry a Catholic or convert to Catholicism. Marriage Annulment The annulment of a marriage is another process that spouses may file in relation to ending a marriage. When any of the grounds established by law arise, it is possible to request the annulment of a civil mar ‑ riage, meaning it will be rendered null and void. Unlike divorce, when a marriage is declared null, it is as if it never existed. The grounds for declaring the annul ‑ ment of a civil marriage are: • if there was an error regarding the identity of the person with whom the marriage was contracted; • when both or one of the spouses are under 18 years of age; • when the marriage was entered into under the influence of force or fear strong enough to prevent the free exercise of decision-making; • when there was no freedom of consent because one of the spouses was abducted; • when one of the spouses was involved in the crime of spousal homicide in a previous marriage; • when a prior marital bond still exists; • when the marriage was contracted between: (a) kinship in a straight line in all degrees, regard ‑ less of the origin of the relationship; (b) kinship between bilateral and unilateral sib ‑ lings, regardless of the origin of the relation ‑ ship; and (c) affinity in a straight line in all degrees. The annulment is processed through legal proceed ‑ ings before a judge. The process begins with a law ‑ suit, for which presenting the marriage certificate is a fundamental requirement. Once the marriage is annulled, all reciprocal rights and obligations arising
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ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
from it cease as of the same day. If bad faith is proven in one of the spouses, they will be obligated to com ‑ pensate the other for all damage caused. Separation of Assets Under the CCC, there is no judicial process under which spouses can obtain a separation sentence other than liquidation of marital assets. Separation of assets refers to a resolution by which the communal marital assets are divided between the spouses, who continue to be married under a different marital asset system (the separated patrimony system). However, a process of judicial separation of marital assets may be filed in case spouses intend to extin ‑ guish the marital assets and for some reason (ie, reli ‑ gious) they do not want to file for divorce. The judicial separation of assets may be requested by one of the spouses: • if the other spouse’s mismanagement threatens to cause the loss of their eventual rights over the community property; • if the other spouse is declared in a state of preven ‑ tive insolvency or bankruptcy; • if the spouses are living apart without the intention to reunite; or • if, due to incapacity or excuse of one spouse, a third party is appointed as the curator of the other. 1.2 Choice of Jurisdiction in Divorce Proceedings The law of the last marital domicile determines the applicable law and court jurisdiction in divorce cases and all matters concerning marriage nullity. Argentina adopted a federal system of government in which each of the 23 provinces (and the Autonomous City of Buenos Aires) has its own procedural law. Thus, the applicable law is always the CCC, and the court with jurisdiction is the provincial court where the last marriage residence was settled. The same grounds apply to same-sex marriages. A party to a divorce may contest jurisdiction if the last marriage domicile is not in Argentina. Marriage dissolution procedures are governed by the spouses’ last marital residence law. However, if
the last marital residence was in a foreign country, the parties may file for divorce in that country and then register the resolution at the local register. An Argentine judge’s intervention is needed to receive all foreign-certified divorce documents. Foreign divorces are recognised when the sentence is issued according to the last marital domicile princi ‑ ple. Therefore, if the last marital residence is located in a different jurisdiction, spouses must register the divorce resolution before the Argentine Civil Registry with the intervention of an Argentine judge who will have received all certified divorce documents filed by the interested party. Notably, if there are proceedings in another jurisdic ‑ tion, the proceedings filed in Argentina can be stayed until the jurisdictional dispute has been resolved. The CCC incorporates the international legal principle of avoiding contradictory rulings over the same matter passed by different courts. It is important to mention that the court’s role in divorce proceedings is limited to supervising that rules of public order ( normas de orden público ) have not been infringed and to ensure, upon petition, a fair res ‑ olution of the unresolved effects of the divorce (either patrimonial or not). Having said that, upon petition, financial orders to enforce child support and financial orders to liquidate and distribute marital assets can both be made on divorce. The choice of divorce orders and how to obtain them from the courts are ruled in the CCC and in each prov ‑ ince’s Civil and Commercial Procedure Codes. The divorce decree shall rule regarding the com ‑ munication regime when minors are involved (under 18 years old) and the attribution of the family home (according to the rules established in the CCC). If petitioned, the court will only order temporary and exceptional spousal maintenance or compensation obligations. 2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings
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ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
Any spouse may file preventive measures on child support or custody before or during the divorce pro ‑ cedure to ensure financial orders. First, a foreign divorce decree needs to be recog ‑ nised in Argentina – for which, summary information known as an “exequatur” must be made whereby an Argentine judge, once they have verified that all the requirements are met (ie, no breach of public order rules and does not oppose another decree passed in Argentina), orders the registration of the divorce in the corresponding Argentine Civil Registry. If bilateral international treaties have been signed, said rules shall apply. Financial claims may be related to immovable assets located in Argentina and to enforcing child mainte ‑ nance. It is important to mention that a foreign financial decree duly certified in its jurisdiction can be enforced if: • the defendant (or paying party) is domiciled in Argentina; or • the defendant’s (or paying party’s) property is located in Argentina. 2.2 Service and Process in Financial Proceedings Financial settlements must go through a prejudicial mediation process before filing in court. If no agree ‑ ment is reached, filing the complaint in court is per ‑ mitted in order to be served. There is no arbitration in family law matters. 2.3 Division of Assets Under the CCC, when a divorce occurs, assets can be divided either through the court or privately. The court does not have to address marital regimes in the divorce decree; instead, the parties can privately set ‑ tle the liquidation of their marital property. They can agree on how to distribute the assets between them ‑ selves. Alternatively, if needed, either or both parties may file a petition for a judicial liquidation and distri ‑ bution procedure. The CCC includes two forms of marital estate: proper ‑ ty earned or purchased by the husband or wife during
the marriage. This marital property can then be clas ‑ sified as marital estate administered by the husband during the marriage and marital estate administered by the wife during the marriage, regardless of who holds title over the specific good. This means that any spouse can hold the title of a property, which is still considered marital estate – although it will be adminis ‑ tered by the spouse holding its title. The marital estate also comprises all assets under the names of compa ‑ nies or third parties that have been established using marital assets or because of the liquidation of marital assets. When a marriage is terminated (due to death or divorce), the assets that qualify as shared/marital property are grouped together. After the applicable lia ‑ bilities and claims of each spouse have been worked out (which may include compensation for the differ ‑ ences in the value of the property), they are divided and distributed equally between the spouses (in case of divorce) or between the heirs and the surviving spouse (in case of death). Trusts Argentine law recognises the concept of trusts. Although Argentina has not signed the Hague Conven ‑ tion on the Law Applicable to Trusts and Their Recog ‑ nition (1985), some court precedents acknowledge the existence and enforceability of foreign trusts, provided that such trusts do not violate Argentine public order (eg, rules regarding inheritance for descendants and spouses). Regulations or by-laws of a trust cannot override the forced heirship rule. As this rule is part of public order, any provisions or structures (such as trusts) that con ‑ flict with it can be challenged in court. Argentine law offers legal remedies for cases where a forced heir has been negatively affected regarding the forced share they are entitled to receive. In this context, any heir is entitled to file a collatio bonorum claim, which involves joining the assets together into a common fund. There are precedents from Argentine courts where forced heirship claims have been admitted against trust assets where the legitimate portion of one of them was infringed.
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ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
The case of Vogelius, Angelina y otros c/Vogelius, Federico y otros In this case, the Supreme Court of Argentina ruled that even though a trust was established in the UK with assets located there, the succession must be governed by Argentine civil law. The court addressed the issue of collatio bonorum (accounting for gifts made during the settlor’s lifetime) and determined that a trust created to benefit a forced heir of the settlor might be classified as a gift to that heir made prior to the settlor’s death. Consequently, this trust must be included in the estate’s accounting, as its implications go beyond what is allowed under inheritance law. Regarding private international law matters, the court established that even though the trust was governed by UK law, the succession was subject to Argentine law because the deceased was last domiciled in Argentina. 2.4 Spousal Maintenance The CCC establishes spousal maintenance or eco ‑ nomic compensation in exceptional and temporary circumstances, including: • in case of illness, or where a clear economic dis ‑ advantage means a worsening of their situation and the marital bond and its breakdown is a likely cause; • when experiencing difficulty in obtaining a job (gen ‑ erally in relation to the parent that holds custody of children); or • in case of potential loss of pension rights, they have the right to claim compensation. Compensation may consist of a one-time benefit, an income for a specified time or, exceptionally, an income for an indefinite period. Financial compensa ‑ tion claims have a six-month statutory limit after the divorce decree has been issued. 2.5 Prenuptial and Postnuptial Agreements Under the CCC, marital agreements (conventions) are accepted under Argentine law. For such agreements to be valid, the marriage must be celebrated, and the
• donations between spouses before marriage; and • the adoption of one of the matrimonial property regimes. These agreements need to be signed by public deed. Argentina has only two marital property regimes: the community property and the separate property regime. The community regime acts principally as the default regime if spouses keep silent on which regime they adopt. Also, spouses may change the matrimo ‑ nial property adopted (only from a community regime to a separate regime and vice versa) within a year of marriage or once a year has passed since the last change. If foreign prenuptial agreements are made, they must adhere to CCC regulations and be filed and registered with the Civil Registry if the marriage celebrated in another country is also registered in Argentina. No postnuptial agreements are recognised by law. However, some private postnuptial agreements may be agreed upon by the spouses when a private sepa ‑ ration and liquidation of the marital assets is signed. For (pre)marital agreements to be enforceable, they must be documented through a public deed, and their content must comply with legal requirements. Courts have seen cases challenging whether the proper for ‑ mal procedures were followed. Due to the variety of clauses included in these agreements, there is no sig ‑ nificant case law. 2.6 Cohabitation: Division of Assets Between Unmarried Couples The CCC recognises certain rights for cohabitants – between unmarried couples – provided they have been together for at least two years. Through “cohabi ‑ tation agreements” ( pacto de convivencia ), domestic partners can regulate different aspects of their lives together, such as economic aspects for distributing property and other responsibilities. The CCC also provides protection for the family home and, if one partner dies, the survivor is granted the right to free housing in the home they shared for a period of two years. The law recognises other par ‑ tial effects on partners (ie, social security and pen ‑
agreements are required to determine: • an inventory of assets of each spouse;
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sion rights); however, the legal recognition provided for them is restricted. Partners or cohabitants do not have inheritance rights; therefore, a testator/testatrix may dispose of their wealth to the partner up to the disposable portion (one-third of the estate). Under the CCC, a cohabitant with no children who suffers a clear imbalance in their economic situa ‑ tion (due to the end of the cohabitation) may claim economic compensation before the court within six months of the breakdown. Upon petition, to ensure financial orders regarding enforcement of child support or economic compen ‑ sation, the execution of a court’s ruling may include seizure, lien or restraint of assets. 2.7 Enforcement of Financial Orders Execution of a court’s ruling may include seizure, lien or restraint of assets (depending on the local jurisdic ‑ tion where the procedure has been filed). In Argentina, traditional methods to ensure child sup ‑ port fulfilment were ineffective. For this reason, addi ‑ tional approaches have been adopted to ensure that those responsible fulfil their obligations. Following the commitment adopted by Argentina to the Convention on the Rights of the Child, a Registry of Child Support Debtors was created. In this way, the Registry seeks to ensure that debtors fulfil their obligation to pay child support, with a focus on the well-being of minors. Due to the challenges in achieving positive outcomes through enforcement actions, sanctions are applied to encourage debtors to rectify their situation. International enforcement of a financial order is per ‑ mitted in Argentina, following international regulations and special procedures. 2.8 Media Access and Transparency in Financial Proceedings When minors are involved, the law prohibits the pub ‑ lication, dissemination or advertising of certain facts related to individuals under the age of 18.
Proceedings are set out in public files. However, family proceedings are reserved files, and only the parties
involved have access to them. 2.9 ADR in Financial Matters
There is no ADR in Argentina. However, parties could reach private agreements with legal counsellors in order to resolve financial matters. 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings For children proceedings, the jurisdictional grounds are the same for marriage and financial cases. It is important to note that the last domicile will give the judge grounds to decide the children’s proceed ‑ ings and which of the spouses will remain in the fam ‑ ily home. As such, the judge considers the following concepts: • who will take care of the children; • the best interests of the children; • who is in a better financial situation to maintain a home on their own; • the health condition and age of the spouses; and • the interests of other individuals who are part of the family group. 3.2 Living/Contact Arrangements and Child Maintenance Communication and Contact Arrangements If there is no (private) agreement between the parents through a parental agreement, the judge will decide on the “communication agreement”. The contract agree ‑ ment shall address the following: • the place and time the children spend with each parent; • the responsibilities each parent assumes toward the children (taking them to school, paying for health insurance, taking them to medical check- ups, etc); • how the children will spend holidays, public holi ‑ days, and other important dates; and
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• how the children will communicate with each par ‑ ent. When courts approach an application for child sup ‑ port or related matters in the context of family law, they generally follow a process that ensures the child’s best interests are prioritised. For a general overview of how courts typically handle such applications, please see 3.1 Choice of Jurisdiction in Children Proceed- ings . Following the breakdown of a relationship or marriage, the legal approach to custody and parental responsi ‑ bility focuses on ensuring the children’s best interests are upheld. The courts typically follow a structured process determined by the CCC when determining custody and the allocation of parental responsibility. In Argentina, there are certain restrictions on the court’s ability to make orders regarding a child’s liv ‑ ing and contact arrangements, particularly to ensure the child’s best interests are always the primary con ‑ sideration. These restrictions are in place to protect the child’s welfare and ensure that decisions regarding custody and visitation are not harmful to the child’s emotional, physical or psychological development. Child Maintenance In Argentina, child maintenance ( alimentos ) is defined as the financial support that one parent provides to the other for the care, upbringing, and welfare of their children after the breakdown of a relationship or mar ‑ riage. The obligation to provide maintenance arises from the legal duty of parents to support their children, ensuring they have access to the basic needs neces ‑ sary for their development, such as food, clothing, education, health, and shelter. The child maintenance applies to both biological par ‑ ents, regardless of marital status or relationship. Ali- mentos shall include: • education (school fees, books, extracurricular activities, etc); • healthcare (medical expenses, dental care, insur ‑ ance); • clothing; and
• housing (when the child lives with the custodial parent, maintenance also contributes to the hous ‑ ing expenses related to the child’s needs). Parents are expected to share the responsibility for maintaining their children, and the law recognises that these duties do not end when the child reaches adult ‑ hood in certain situations – for example, if the child is still studying or is unable to support themselves. The parents’ incomes and the financial agreements between the spouses in a divorce directly affect the calculation of child maintenance. While there is no fixed formula for calculating child maintenance in Argentina, the law typically sets out a percentage of the non-custodial parent’s income, which the court may adjust based on the child’s needs and the financial ability of both parents. By way of example, child maintenance may range between 15% and 25% of the non-custodial parent’s income, depending on the number of children and other rel ‑ evant factors. The percentage may increase or be adjusted if there is more than one child. In cases where the parents are not in agreement about the amount of maintenance, a judge will evaluate the parents’ incomes, the needs of the child, and other factors to determine an appropriate maintenance amount. In joint or shared custody cases, where the child spends an equal amount of time with both parents, the amount of maintenance may be adjusted, with both parents contributing proportionally to the child’s needs. The court will consider both parents’ incomes and the practicalities of care and financial support. As described previously, parents may address child maintenance arrangements privately and then seek the judge’s acknowledgement. Permanent and temporary maintenance orders In Argentina, the court can issue both temporary and permanent maintenance orders, which are granted while a case is still pending, ensuring that the child’s needs are met before a final decision is made. The weaker party typically requests this type of order. Conversely, permanent maintenance orders are estab ‑ lished once a final decision is reached and remain in
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effect until the child turns 18 or until there is a change in circumstances. In Argentina, child maintenance orders generally last until the child reaches the age of 21 (unless the adult child has sufficient resources to provide for them ‑ selves). However, there are exceptions and, in some cases, the maintenance obligation can extend beyond this age limit until the child reaches the age of 25 (for children attending university or vocational school and if they cannot support themselves). Moreover, beyond the age of 21, if the child is incapacitated or unable to work due to a physical or mental condition, the parent may still be required to provide maintenance, regard ‑ less of the child’s age (on a case-by-case basis). The minimum age for a child to be able to apply for maintenance directly in Argentina is 18 years old, as this is the age of legal majority and the capacity to make independent legal decisions. Medical treatments It is important to highlight that under the CCC, there is a presumption that children between the ages of 13 and 16 can make decisions regarding non-invasive medical treatments that do not compromise their health or pose a serious risk to their lives or physical integrity. For invasive treatments that do compromise their health, or when their integrity or life is at risk, the ado ‑ lescent must give their consent with the assistance of their parents. In the event of a conflict between the parents, the matter is resolved by prioritising the adolescent’s best interests based on medical opin ‑ ions regarding the consequences of carrying out or not carrying out the medical procedure. 3.3 Other Matters Courts in Argentina have the authority to issue orders regarding the upbringing of a child when parents have not reached an agreement regarding schooling, medi ‑ cal care, religion and holidays. In Argentina, courts consider allegations of parental alienation to be a restrictive matter that considers the best interests of the child (as a public order rule). The factors to be considered are:
• the child’s behaviour and relationship patterns – changes in the child’s behaviour towards the alienated parent (such as sudden hostility, fear, or rejection) that cannot be reasonably explained; and • parental conduct – evidence is examined to deter ‑ mine whether one parent has engaged in alienating behaviours, such as: (a) making disparaging remarks about the other parent; (b) limiting contact or access without valid rea ‑ sons; and (c) manipulating the child to develop negative feel ‑ ings towards the other parent. In respect of parental alienation, the court may also: • order evaluations by mental health professionals to identify signs of alienation and its impact on the child; and • consider whether the alienation has negatively affected the child’s emotional health, self-esteem, or ability to form stable relationships. When parental alienation is established, the court can take measures such as adjusting custody or visitation arrangements, mandating therapy, or imposing penal ‑ ties on the alienating parent to safeguard the child’s welfare. Once again, the principle of protecting the child’s well- being applies to children giving evidence in court. The CCC grants children the right to be heard in legal pro ‑ ceedings affecting them – taking into account their age, maturity and level of understanding. Ultimately, the court uses the child’s testimony as one of several factors to determine the course of action that best aligns with the child’s rights and welfare. 3.4 ADR in Child Law Matters Mediation is a well-established mechanism that helps parties resolve all family disputes (including child sup ‑ port, spousal maintenance and marital asset division). It is a widely used ADR method in Argentina. Media ‑ tion involves a neutral third party (the mediator) who facilitates communication and negotiation between the parties to reach a mutually agreeable solution. The rule of confidentiality allows parties to negotiate
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Anonymity All case reports will anonymise children’s information to protect their identity. Names and other identifying details, such as addresses, school names or photo ‑ graphs, will be redacted or replaced with initials or pseudonyms in all official records and public com ‑ munications. In family law cases, proceedings involving children are automatically anonymised as a matter of law to pro ‑ tect their privacy and dignity. Parents may still wish to ensure further anonymisation or privacy. If any party, media outlet or individual breaches con ‑ fidentiality rules, the court may impose fines or sanc ‑ tions. The offending party may face additional legal consequences.
freely without fear that their discussions will be used against them in court. The law also allows private agreements to be settled by the parties with the participation of legal advice as a requirement. In many provinces in Argentina, both mediation and private agreements are mandated by law as a prereq ‑ uisite to filing certain types of court cases, including financial disputes. 3.5 Media Access and Transparency in Children Proceedings In Argentina, reporting cases involving children is highly restricted to protect their privacy and safe ‑ guard their best interests. Both parents and public child advocate may request anonymisation of the pro ‑ ceedings. The applicable regulations are: • The Convention on the Rights of the Child, incor ‑ porated into Argentina’s Constitution, guarantees children’s rights to privacy; and • The Civil and Commercial Code and Law 26,061 on the Comprehensive Protection of the Rights of Children and Adolescents, which explicitly prohibit the publication of any information that may directly or indirectly identify a child involved in judicial proceedings. Media outlets are prohibited from publishing names, photographs or any identifying details about the child or their family. Violations of these rules can result in legal penalties, including fines or sanctions for the publication.
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