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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