ARGENTINA Trends and Developments Contributed by: Micaela Cagnoli and Herberto Robinson, McEWAN
Choice of Matrimonial Property Regime in Argentina Why choosing (or not choosing) a matrimonial property regime matters Argentine law has progressively evolved in order to align with contemporary social and economic realities and with legal practices commonly adopted across civil law jurisdictions. In the same way that the legal system has strength ‑ ened autonomy of will in matters of succession plan ‑ ning and family organisation, it has also modernised the rules governing marriage. Since the entry into force of the Argentine Civil and Commercial Code ( Código Civil y Comercial de la Nación – CCyC), the system has expressly recognised broader party autonomy in the patrimonial dimension of marriage. Specifically, future spouses may choose between two matrimonial property regimes and formalise that choice through marital agreements ( convenciones matrimoniales ), which are subject to a restrictive numerus clausus. However, this autonomy is not unlimited. The CCyC adopts a closed-option model: spouses may opt either for (i) the community of gains regime ( régimen de comunidad/ganancialidad ) or (ii) the separation of property regime ( régimen de separación de bienes ). Where the parties do not validly choose separation of property, the law provides that the default legal regime shall be the community of gains regime. Accordingly, marriage does not merely create a civil status and a set of personal and family duties; it also establishes a patrimonial framework that has immedi ‑ ate effects between spouses and, in many cases, vis- à-vis third parties (creditors, purchasers and public registries, among others). In practice, the choice of regime has a direct impact on sensitive issues that affect the spouses throughout married life, including: • ownership and management of assets acquired during the marriage; • responsibility for liabilities and debts; • protection of the family home; • potential reimbursement claims or credits between spouses; and
• the rules applicable to liquidation and partition in the event of divorce or death. This decision therefore requires careful consideration of the legal consequences attached to each regime. Many couples marry without realising that, if no express election is made, they will automatically be subject to the legal default regime of community of gains; and that if they later wish to change regimes, the CCyC allows such change only under strict formal and temporal requirements. This contribution reviews the current Argentine frame ‑ work and the alternatives provided by the CCyC, focusing on marital agreements, their legal nature, permitted content, validity requirements and the pos ‑ sibility of modifying the matrimonial property regime after marriage. The alternatives under the CCyC The CCyC sets out clear rules on the matrimonial property regime. Title II, which regulates patrimonial relations between spouses, is divided into three chap ‑ ters: (i) general provisions applicable to both regimes; (ii) a specific chapter on the community regime; and (iii) a specific chapter on the separation of property regime. Within the general provisions, the Code introduces marital agreements as the mechanism through which future spouses may, before marrying, agree on certain matters that will govern their patrimonial relationship. Marital agreements: concept, legal nature and limits As stated above, the CCyC grants a degree of auton ‑ omy of will by allowing future spouses, prior to mar ‑ riage, to enter into marital agreements. However, this autonomy is strictly limited: the subject matter of such agreements is confined to the matters expressly listed in Article 446 CCyC. Those matters are: • the identification and valuation of the assets each party brings into the marriage; • the disclosure of existing debts; • donations made between the parties; and
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