Types of Matrimonial Regimes

January 24, 2020
Having matrimonial regimes is an unavoidable consequence of marriage. Therefore, the absence of one after the union of two people is rare. Today's article is about the ones currently in use.

Marriage is the union of two people of any gender. Certain legal rights or formalities, matrimonial regimes, help establish it. This celebration implies the creation of a series of rights and obligations between its members. In addition, it results in the existence of various situations regarding their possessions. That’s the management of the economic assets of both partners or each partner.

The goal of this article is to study the various matrimonial regimes. They’re the set of rules that determine the economic interests of the spouses with each other and their relationships with third parties.

Analyzing this subject is of great importance, especially to understand what would happen to common assets in case of separation, be it by death or divorce. Next, you’ll see the effects that each matrimonial regime has on every one of these situations.

Two people wearing rings on their thumbs.

Matrimonial regimes are necessary

The adoption of a matrimonial regime is an unavoidable consequence of marriage. Thus, the existence of a marriage without a matrimonial regime is inconceivable. Even when there’s total silence when deciding which one to establish, there are certain rules set jurisprudentially.

Said in simpler terms, the partners that comprise a couple can choose which marriage regime to adhere to. However, if they don’t make this choice, the law will establish one automatically.

The economic regime applicable to each marriage depends on the parties listed in marriage certificates. There are no limitations other than those established by civil law. In the absence of capitulations, or when these aren’t effective, there’s usually a regime established in each community. As we mentioned, the system of property usually applies as you’ll see it below.

Types of matrimonial regimes

There are three matrimonial regimes: profit sharing, separate assets, and participatory. Each has its own characteristics. It’s important to understand them and to take this into account when deciding on this issue.

Profit-sharing regime

This is the most common regime. Its main characteristics are that all the gains and benefits that any of the spouses obtain during their marriage become common assets.

Thus, when people marry and make their assets common, there are two different types of assets within it:

  • Private goods. Those the spouses had before there was a society of property, as well as those inherent in a person, their clothes and all personal objects that aren’t too valuable. The goods they acquired later through their own resources as well.
  • Common goods. Those obtained through the work of each one of the spouses. The “fruits” and income produced by both private and common goods also, as well as businesses they established during their marriage.

In the event of separation or divorce, it can be complex to differentiate which assets correspond to each partner. To separate the goods, they must make an inventory of all the goods.

Thus, one can establish that private property belongs to the spouse that holds the ownership. However, there’s an inventory of the common existing assets and their value to liquidate and divide them.

It’s of utmost importance to operate under the advice of an attorney in order to carry out this process, especially in complex cases. This way, you can avoid further confrontations between the members of a couple.

Separate assets regime

This regime establishes that each member of a couple owns their own assets and that there are no common ones. Thus, each person manages their individual assets. So, when the spouses acquire goods together, both will appear as owners of said property.

Let’s emphasize that both spouses must contribute to the marital charges in this case even though there’s no common heritage. The main advantage of this regime is that, in the event of separation or divorce, it’ll be a lot easier to liquidate the estate.

Participatory matrimonial regimes

Here, each of the spouses retains their economic autonomy during their marriage. But they’re a society in the event of divorce or separation. Actually, this regime has characteristics of the previous two.

The liquidation to carry out if there’s divorce or separation is similar to that of the regime of marital property. However, there’s an inventory to determine initial and final assets. Once the calculation is finalized, they can determine the participation corresponding to each person.

A person writing on a sheet of paper.

Other matrimonial regimes

There are two other typical regimes that are still used in certain countries despite their controversial characteristics.

  • Unfortunately, there’s still the regime of absorption of the economic personality of the woman by her husband. That is, the entire estate of the woman goes to her husband after marriage. This regime implies that women don’t have rights during marriage and even after its dissolution. This is a sexist and degrading concept that should no longer be legal anywhere.
  • In addition, the joint property regime is still enforced in some nations. In this case, the ownership of the property isn’t necessarily transferred to the husband, only its administration and usufruct. Thus, a woman retains her property rights but not her credit rights.
  • Derecho, http://www.derecho.uba.ar/publicaciones/lye/revistas/33/regimenes-matrimoniales.pdf
  • Rankia, https://www.rankia.com/blog/irpf-declaracion-renta/3270666-regimenes-economicos-matrimoniales-espana-sociedad-gananciales-separacion-bienes-participacion
  • Guías jurídicas, https://guiasjuridicas.wolterskluwer.es/Content/ListaResultados.aspx?params=H4sIAAAAAAAEAHWOOw-CQBCEfw3XkBgMlcUVohY2aJDeLMcKl3gP74Hcv_eQREJhNztfZmZfHk2ocXTUJD7LcNdxgTJtMdVgHGdcA-MTeeSS2CCVDILWxiNx0FiaEWDOw_OoGN1Omg9YQxN9ZVo0RYjK9updwsA7cFzJAsyctwiG9VfokJ5lHFIbsHokTHPaOHn70iSHn46kXZFTebiUdbWvCBPrTLzvc31cEf-Qj_8v7bNZeOeUXOwPNcFtGB8BAAA=WKE
  • Código Civil, https://www.boe.es/buscar/act.php?id=BOE-A-1889-4763