ARGENTINA Trends and Developments Contributed by: Micaela Cagnoli and Herberto Robinson, McEWAN
Under this regime, the key issue is not merely title, but asset characterisation (separate versus community), management powers, limits on disposition, and the consequences upon dissolution (divorce, annulment, death, etc). In family litigation, characterisation and traceability of assets often become central evidentiary issues. Separation of property (conventional regime) As mentioned, the alternative regime is one of separa ‑ tion of property, adopted by express election through a marital agreement prior to marriage or through a later modification. Its guiding principles are: • each spouse retains ownership, administration and, in principle, responsibility for their assets, without forming a marital estate to be divided equally at the end. In other words, all assets are personal property. • Nevertheless, the general provisions applicable to both regimes remain in force, including duties of contribution and family protection, as well as rules aimed at preventing fraud against third parties and safeguarding the family home. Functional comparison between community and separation Asset management and disposition Under community, the law establishes specific rules on administration and limits on disposition, particu ‑ larly regarding registrable assets, the family home, or acts affecting family interests. In practice, this often entails stricter requirements for spousal consent and control. Under separation, each spouse manages and dispos ‑ es of their assets, subject to limitations arising from the primary regime (including protection of the family home and duties of contribution). Liability for debts This issue often motivates the choice of separation. However, it should not be approached simplistically. Even under separation, obligations linked to the satis ‑ faction of family needs may give rise to concurrent or joint liability, depending on the circumstances and the
source of the obligation, together with the protection afforded to good-faith third parties. Under community, depending on the origin of the debt and its relationship with family interests or the admin ‑ istration of community assets, liability may extend to community assets or, in some cases, to separate assets. Legal advice should therefore be tailored to the case (activity, risk exposure, patrimonial structure, expected indebtedness, etc). Dissolution: liquidation and partition Under community, dissolution requires liquidation and partition of the community pool, including characteri ‑ sation of separate and community assets, reimburse ‑ ments and interspousal credits. This process may be straightforward or highly complex depending on the patrimonial structure (family businesses, significant unregistered assets, assets abroad, untraceable cash flows, etc). Under separation, there is no community pool to be divided; nonetheless, disputes may still arise (co- ownership, interspousal claims, proof of contribu ‑ tions, family home disputes, post-divorce economic compensation – which is distinct from the patrimonial regime – and maintenance issues). Practical criteria for choosing between community and separation In practice, there is no universally “best” regime. The appropriate choice depends on the family’s needs and the spouses’ patrimonial and life project. The follow ‑ ing sets out an example. Situations where separation is commonly recom ‑ mended: • activities involving significant credit exposure (busi ‑ ness, commerce, professional liability risk, frequent guarantees); • substantial pre-existing patrimony requiring trace ‑ ability, often inherited across generations; • second marriages with children from previous rela ‑ tionships, requiring clear patrimonial expectations; • ventures where one spouse contributes capital and the other contributes primarily through domestic work (which requires careful structuring to avoid
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