ARGENTINA Trends and Developments Contributed by: Micaela Cagnoli and Herberto Robinson, McEWAN
• the election of one of the legally permitted matri ‑ monial property regimes. This framework shows two core features. First, the legislature authorises party autonomy, but only within a closed statutory system. Second, the instrument serves purposes of publicity, evidentiary certainty and predictability, both for the spouses and, in relation to the matrimonial property regime, for third parties. From a systematic standpoint, marital agreements are contracts with a family-law subject matter, but with restricted party autonomy. Their effectiveness is caus ‑ ally linked to the celebration of the marriage: they do not fully operate if the marriage is not celebrated or is later annulled, without prejudice to the nuances of nullity and good faith. They are also formal legal acts, binding upon the par ‑ ties, which must be executed and performed in good faith. Article 448 CCyC establishes the formal validity requirement: marital agreements must be executed by public deed ( escritura pública ) prior to marriage. They become effective upon the celebration of the marriage, provided the marriage is not annulled. This requirement is not merely evidentiary; it is con ‑ stitutive. In the absence of a public deed, the marital agreement is ineffective as such. Furthermore, where the agreement includes the elec ‑ tion of the matrimonial property regime, that election must be recorded by marginal annotation in the mar ‑ riage record in order to be enforceable against third parties. This legal nature explains why notarial and registry practice tends to be particularly strict with respect to compliance with form and correct registration. At stake is transactional legal certainty: a creditor or third-party contracting party must be able to ascertain which regime applies, as this determination affects key rules on liability and enforcement.
From a professional perspective, it is not sufficient to treat the execution of the public deed as the end of the process; it is essential to ensure that the regime election is properly recorded in the relevant marriage
registry, to prevent future disputes. Can a marital agreement be modified?
The CCyC introduces limited flexibility by allowing spouses to modify the matrimonial property regime after one year of application of the existing regime, counted from the celebration of the marriage. Such modification must likewise be made by agreement between the spouses, executed by public deed, and recorded by marginal annotation in the marriage record in order to be enforceable against third parties. Additionally, the law provides specific protection for pre-existing creditors who may be adversely affected: they may request that the change be declared unen ‑ forceable against them within the statutory time limit, calculated from the moment they became aware of the change (as provided by the relevant provision). In practical terms, changing the regime is not an auto ‑ matic shield against existing debts. If the change is used as a means to frustrate third-party rights, the legal system provides mechanisms to neutralise its effects vis-à-vis affected creditors. Content: what may – and may not – be validly included in a marital agreement A common question in practice is: “May we agree on anything we want regarding property?” The legal answer is no. If the agreement addresses matters beyond Article 446 CCyC, the relevant clause is inef ‑ fective and, depending on the circumstances, may impact the agreement’s validity or severability. Accordingly, spouses may include only clauses that fall within the expressly permitted categories. Identification and valuation of contributed assets The agreement may include an inventory and valu ‑ ation of assets owned by each party prior to mar ‑ riage. By way of example, the spouses may agree on clauses identifying each asset, assigning a valuation or stating the origin of ownership. This serves several purposes:
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