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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