2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

Spouses who have not concluded a marriage contract are, as of the day of their civil marriage, subject to the statutory regime, which is one of community only of the property acquired after the marriage has begun. This regime divides the assets of the spouses into three estates: the two separate estates of the spouses with all of the assets that they owned prior to the marriage and all assets acquired via an inheritance or via a gift during the marriage, or the assets that come in replacement of these assets (Art. 1399 - 1404 CC [Code Civil = Civil Code]). Certain assets or rights are separate regardless of the time of acquisition: this includes e.g. the accessories of each spouse´s own immovable property, clothing and objects for personal use, right to a pension, etc. (for a complete list see Articles 1400 and 1401 CC). The common property consists of all earnings, both the professional income and the earnings from each spouse´s own assets, as well as the assets acquired for valuable consideration during the marriage (Art. 1405 CC).

2.2. Are there legal assumptions concerning the attribution of property?

All assets of which it cannot be proven that they are the property of one of the spouses shall be regarded as common (Art. 1405 CC).

2.3. Should the spouses establish an inventory of assets? If so, when and how?

Spouses can include a list of assets in the marriage contract. This list applies between the spouses until proof of the contrary, but cannot be invoked against third parties. In some cases a change in the marital property regime requires a prior inventory.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

Each of the spouses can dispose of his/her own assets (Art. 1425 CC), with the exception of the family home, which may never be sold or encumbered by a mortgage by just one of the spouses, without the consent of the other spouse (Art. 215, para. 1 CC). The common property must be administered in the interest of the family. As a general rule it applies that either of the spouses can administer the common property. For example, the day-to-day actions (e.g. actions relating to the housekeeping and the upbringing of the children) can be taken separately by the spouses. In certain cases, exclusive administration by only one of the spouses is possible (e.g. when one of the spouses exercises an independent profession - Art. 1417, para. 1 CC). For other matters of greater importance such as entering into a mortgage loan or the sale of immovable property, both spouses must act jointly (Art. 1417, para. 2, Art. 1418 and 1419 CC). If the consent of a spouse is absent, the legal act can be declared invalid. (Art. 1422 and 1423 CC).

2.5. Are any legal transactions made by one spouse also binding on the other?

For those parts of the property a spouse can administer alone, the other spouse is bound to respect the action (Art. 1416 CC). If the spouses have to act jointly, consent of the other spouse is necessary (Art. 1417, para. 2 CC). In case this consent is not given, the spouse who did not consent can in certain cases and within a certain time limit, request a declaration of invalidity.

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Debts from before the marriage and the debts deriving from inheritances and gifts received during the marriage are separate (Art. 1406 CC). In addition, inter alia debts entered into by one of the spouses in the exclusive interest of his/her own estate are also separate (for a complete list see Art. 1407 CC). Common are e.g. the debts entered into by one of the spouses for the purposes of housekeeping and raising the children (for a complete list see Art. 1408 CC).

As a general rule, each spouse is liable for his/her own debts with his/her own estate (Art. 1409 CC). Certain exceptions to this general rule apply (Art. 1410 to 1412 CC). In the event that it concerns a debt entered into by both spouses, it can be recovered both from the separate estate of each of the spouses and from the common property (Art. 1413 CC). Also a common debt can be recovered both from the separate estate of each of the spouses and from the common property, albeit with certain exceptions (Art. 1414 CC).

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