ARGENTINA Trends and Developments Contributed by: Micaela Cagnoli and Herberto Robinson, McEWAN
• it delineates pre-marital patrimony and facilitates distinguishing separate property from community property; • it reduces evidentiary disputes upon dissolution; and • it helps structure assets for tax, credit or family administration purposes. From a practical standpoint, inventories should be as detailed as possible. Generic descriptions (eg, “a car” or “household furniture”) often lead to litigation. Disclosure of debts Debt disclosure functions as an informative declara ‑ tion: it makes pre-existing liabilities visible, promotes transparency, and may influence subsequent discus ‑ sions regarding liability and reimbursements. It can be evidentially relevant, especially if disputes later arise as to whether a debt was incurred before or during the marriage and for what purpose. It may also refer to reimbursement consequences associated with such debts or their impact on the enforceability of claims against the family home. Donations between future spouses The CCyC allows donations between future spouses. In practice, such donations may serve multiple pur ‑ poses – facilitating housing, balancing contributions, or supporting a business venture. As with any gra ‑ tuitous transfer, they must be carefully assessed in light of patrimonial and succession consequences, potential future reduction claims and, where applica ‑ ble, collation. The central clause: election of the matrimonial property regime The principal feature of marital agreements is the abil ‑ ity to formalise the election of the matrimonial prop ‑ erty regime. The parties may confirm the community regime (which would apply by default) or elect the separation of property regime, which operates under the closed statutory framework established by the Code. What cannot be included Marital agreements cannot validly include clauses purporting to create binding obligations such as:
• broad advance waivers of indeterminate future rights outside the statutory framework; • management or disposition arrangements contrary to mandatory rules of the primary regime; • succession arrangements involving future inherit ‑ ance, which are prohibited; • clauses impairing personal rights, equality between spouses, or the protection of the family home; or • “penalty clauses” triggered by divorce or provi ‑ sions restricting the freedom to seek divorce. This does not prevent spouses from using other lawful instruments (eg, corporate structures, trusts, dona ‑ tions within legal limits or testamentary planning), but such measures cannot be included within a marital agreement as if it were a “comprehensive patrimonial contract”. Validity, capacity and legal scrutiny: essential requirements Beyond form and publicity, general principles govern validity. • Capacity – parties must have legal capacity to exe ‑ cute the act; if capacity is restricted, the applicable legal regime and any required supports/representa ‑ tion must be assessed. • Consent – consent must be free and informed; in practice, attorneys and notaries should detect asymmetries, defects of consent, or undue influ ‑ ence. • Lawful and limited object – the agreement must not exceed Article 446. • Cause and purpose – particularly relevant where fraud against third parties may be at issue. Permitted regimes Community of gains (default legal regime) As a rule, if the parties do not validly elect separation, the community regime applies. Legal doctrine often refers to this as “community of gains”. Functionally: • each spouse retains their separate property; and • a pool of community (or “marital”) assets is formed, generally consisting of acquisitions made for consideration during the marriage, governed by specific rules on administration, disposition and liquidation.
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