Matrimonial conventions

​​

By means of a matrimonial agreement, spouses can opt for either the regime of separation of property or the regime of conventional community. If the spouses do not conclude a matrimonial agreement, the regime of legal community will apply to them, by law.

The notary public assists spouses in choosing the matrimonial regime, corresponding to their will, and offers them advice on choosing the specific clauses adapted to each couple

​

Do spouses benefit from total freedom in choosing a matrimonial regime?

Spouses, by agreement, can choose only one matrimonial regime, and cannot derogate from the rules regarding equality between spouses, parental authority or legal succession devolution, as well as from the norms regarding the matrimonial regime in general. Regardless of the matrimonial regime chosen, spouses owe each other fidelity, assistance and help, and contribute jointly to household expenses.

​

Choosing the family home

If, by the matrimonial agreement, the spouses have chosen a home for the family's home, the notary public is obliged, after communicating the copy of the marriage certificate, to note in the Land Registry, if it is open, the family home assignment.

Neither spouse, even if they are the exclusive owner, can dispose of the rights over the family home nor can they conclude acts that would affect its use, without the written consent of the other spouse.

​

Conclusion of the matrimonial agreement 

In the case of existing marriages, spouses may opt to change the matrimonial regime of the legal community, with the conventional community regime or with the separation of property regime, if more than one year has passed since the conclusion of the marriage.

The choice of a matrimonial regime can also be made by the future spouses at any time until the conclusion of the marriage, by concluding a matrimonial agreement in authentic notarial form. Before authenticating any matrimonial agreement between the future spouses, it will be checked in the National Register of Matrimonial Regimes whether other matrimonial agreements concluded by them have not been entered.

The matrimonial agreement thus concluded will be presented by either of the future spouses, at the time of filing the marriage declaration, to the civil status officer, at least 10 days prior to the date on which the marriage will be concluded.

​

Conventional community regime

In the case of conventional community, the spouses may establish in advance, at the date of conclusion of the matrimonial agreement, the share that is due to them from the assets acquired jointly during the marriage, a share that is mandatory for all acquisitions during the marriage, any modification of this clause being preceded by the liquidation of the matrimonial regime and the conclusion of another matrimonial agreement.

The matrimonial agreement of conventional community may refer to one or more of the following aspects:

a) inclusion in the community, in whole or in part, of assets acquired or debts incurred before or after the conclusion of the marriage, with the exception of assets for personal use and those intended for the exercise of the profession of one of the spouses;

b) restriction of the community to assets or debts specifically determined in the matrimonial agreement, regardless of whether they are acquired or, as the case may be, incurred before or during the marriage, with the exception of obligations assumed by either spouse to cover the usual expenses of the marriage;

c) the obligation of the consent of both spouses for the conclusion of certain administration acts; in this case, if one of the spouses is unable to express his will or opposes abusively, the other spouse may conclude the act alone, but only with the prior approval of the guardianship court;

d) inclusion of the preciput clause; the execution of the preciput clause (the possibility of the surviving spouse to take over, without payment, before the division of the inheritance, one or more of the common assets) is done in kind or, if this is not possible, by equivalent, from the value of the community's net assets;

e) modalities regarding the liquidation of the conventional community.

 

The regime of separation of property

This regime of property is suitable for spouses who have different financial situations and who do not want to enter into the community with a property acquired through the fruit of their work. It can also be a disadvantage, for example, for the spouse who does not have his own income and is dedicated to raising children. 

If the regime of separation of property is opted for, the spouses can provide a clause according to which the goods that are acquired during the marriage together by them belong to joint ownership in shares, following that in each acquisition act, under these conditions, to determine the undivided share that belongs to each of them according to the effective contribution. 

Each one retains the exclusive right of ownership, but a joint ownership between the spouses remains possible, being allowed for the spouses to purchase all the goods in a share of ½. 

All debts contracted by one of the spouses remain his own debts, regardless of whether they were contracted before or during the marriage.

Who manages the property?

Each spouse retains full management rights over their personal property. They can alienate or encumber their property without the consent of their spouse.

 

The regime of legal community

The assets acquired during the regime of legal community by either spouse are, from the date of their acquisition, joint assets of the spouses in their entirety.

As an example, we show that those assets acquired by the spouses by legal or testamentary inheritance as well as by donation are not joint assets but are the property of each spouse, regardless of whether the moment of acquisition is during or before the marriage. The exception to this rule is the case where the disposer, donor or testator, has provided that the assets become joint.

Who manages the property?

Each spouse can manage the joint assets alone, but the most important acts require the consent of both spouses (selling a property, mortgaging, concluding a donation).

Acts of alienation or encumbrance with real rights, having as their object the joint assets, can only be concluded with the consent of both spouses. The exception is joint movable assets whose alienation is not subject, according to the law, to certain publicity formalities, assets that either spouse can dispose of alone. The act concluded without the express consent of the other spouse, when it is necessary, according to the law, is annulable.

With regard to acts of conservation, use and administration, each spouse has the right to use the common property without the express consent of the other spouse. However, the change of destination can only be made by agreement of the spouses. Also, each spouse can conclude acts of conservation, acts of administration regarding any of the common property, as well as acts of acquisition of common property. To the extent that his interests related to the community of property have been prejudiced by a legal act, the spouse who did not participate in the conclusion of the act, can only claim damages from the other spouse, without affecting the rights acquired by third parties in good faith.

 

Liquidation of the matrimonial regime.

The matrimonial regime is liquidated upon the dissolution of the marriage through divorce, upon the change of the existing matrimonial regime or upon the death of one of the spouses. The liquidation is carried out by a liquidation act concluded in authentic form or, in case of disagreement, by a court decision.

Spouses married under the legal community regime before October 1, 2011 may divide the common property during the marriage after the entry into force of the Civil Code, without thereby liquidating the matrimonial regime.

In the act of liquidating the community, the first operation will be to determine the share that belongs to each spouse/former spouse based on his/her contributions both to the acquisition of the common property and to the fulfillment of obligations. Then, the division of the property and the regularization of debts will be carried out.

The common creditors of the spouses can only request the division of the common property, without being able to modify or liquidate the chosen matrimonial regime. In the case of division of joint property, both at the request of creditors and of either spouse, the matrimonial regime chosen through the matrimonial agreement continues to have effect until it is modified, according to the law.

 

Publicity of the matrimonial agreement

In order to be enforceable against third parties, matrimonial agreements are registered in the National Notarial Register of Matrimonial Regimes (RNNRM).

After authenticating the matrimonial agreement, the notary public will communicate a copy of the agreement to the National Register of Matrimonial Regimes, at the expense of the parties, and another copy will be communicated to the civil status office where the marriage took place, in order to make a mention of it on the marriage certificate. After registration with the RNNRM, the notary public is obliged, depending on the nature of the assets included in the matrimonial agreement, to carry out the publicity formalities in the other publicity registers (Land Register, Trade Register, Electronic Archive of Movable Real Guarantees and other publicity registers).

The matrimonial agreement cannot be opposed to third parties with regard to the acts concluded by them with one of the spouses, unless the publicity formalities have been fulfilled or if the third parties have learned of it in another way.