The main amendment that the new Civil and Commercial Code (the "CCC") introduce to the matrimonial property regime is that, based on the principle of free will, the future spouses have now the possibility of opting, by entering into marriage conventions (the "Conventions"), between (i) a shared property regime, or (ii) a separate property regime. Section 463 of the CCC establishes that in the event that no convention is made or the convention does not set forth any provision regarding the property regime, the traditional shared property regime will be applicable (Section 463).
The Argentinean Civil Code, in force until August 1st, 2015, characterized the marriage property regime as the formation of a mass of goods that, upon termination of marriage, would be shared between the spouses. In which case, each of them would have a common expectation on the acquired goods. The Civil Code provided a legal, imperative and immutable regime. Prenuptial conventions were allowed only in the situations set forth in the civil code, which did not include the right to opt for a particular regime.
In accordance with Section 446 of the CCC, Conventions may be created for the purpose of: (i) designation and appraisal of the goods that each of the future spouses bring to the marriage, (ii) admission of debts, (iii) donations made between each other and (iv) option chosen taking into account the regimes contemplated in the CCC. The abovementioned section introduced the possibility for future spouses to enter into marriage conventions, but at the same time, it limits the scope of such agreements.
Section 448 of the CCC provides that in order for the Conventions to be valid, they must be executed by a notarially recorded instrument. Moreover, for the said conventions to be effective against third parties, the marriage certificate must include a note in the margin specifying the regime chosen.
In the event that the spouses decide to change the regime, the amendment must also be made by convention and by a notarially recorded instrument. In addition, the spouses must be married for at least one year (Section 449). In the event that there are creditors affected by this change, they will have one year to oppose, counting as from the time they became aware of the change.
Regime of shared property. Notwithstanding some changes, the new regime of shared property is still characterized by the distinction between personal assets and shared property. Each spouse is not...