ARGENTINA Trends and Developments Contributed by: Micaela Cagnoli and Herberto Robinson, McEWAN
inequity and may call for complementary instru ‑ ments); and • multi-generational family business planning aimed at preserving continuity. Situations where community may be functional: • integrated economic projects, joint acquisitions and shared roles; • couples wishing joint efforts during marriage to be reflected in a pool divisible equally; and • cases where proving individual contributions would be especially difficult and could increase litigation under separation. However, while separation may reduce certain dis ‑ putes typical of community liquidation, it may inten ‑ sify others (co-ownership disputes, evidentiary issues regarding contributions, credit claims, improvements to separate property, loan repayments and, outside the patrimonial regime, economic compensation). For that reason, separation should ideally be accompa ‑ nied by systematic documentation of ownership and contributions. Adequate legal advice is recommended so that spouses can make an informed decision and fully understand the consequences of each regime. Marital agreements versus cohabitation agreements (cohabitation unions) By way of comparison, the CCyC recognises cohabi ‑ tation unions in Title III and allows cohabitation agree ‑ ments. In this regard, it allows cohabitants to enter into agree ‑ ments to regulate certain aspects of their life together. Unlike marital agreements, cohabitation agreements may cover a broader scope, reflecting genuine auton ‑ omy of will rather than a closed list. Article 514 pro ‑ vides that such agreements may regulate, among other matters: • contribution to household expenses during the relationship; • allocation of the shared home upon separation; and
• division of assets acquired through joint effort upon termination. The expression “among other matters” broadens the range of permissible provisions, allowing regulation of matters such as allocation of expenses, residence, household assets, children’s residence, co-ordination of family income, and economic compensation upon separation – covering both personal and patrimonial aspects. The only limits are public policy, equality between partners, and the protection of fundamental rights. To be effective against third parties, the cohabitation union must be registered together with the agreement, which must be in writing. If the agreement involves real estate or other registrable assets, it must be executed by public deed. It may also be amended or terminated by mutual agreement without further restrictions. Accordingly, cohabitation agreements allow broader regulation of the relationship and may facilitate a less contentious asset division upon separation. Conclusions Argentine matrimonial property law currently offers two clear alternatives: the community of gains regime (default legal regime) and the separation of property regime (conventional regime). The principal mecha ‑ nism to exercise that choice is the marital agreement, whose object is strictly limited to Article 446 CCyC and whose validity requires execution by public deed prior to marriage, taking effect upon celebration and requiring registry publicity to be enforceable against third parties. Although the CCyC expanded party autonomy, the system remains a closed-option model, as the elec ‑ tion is limited to the two regimes under exclusive statutory conditions. Moreover, as discussed, the regime may be modified subject to strict requirements: after one year of appli ‑ cation of the existing regime, by public deed, with marginal annotation, and with specific safeguards for pre-existing creditors adversely affected, pursuant to Article 449 CCyC.
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