2 Is there a statutory matrimonial property regime and if so, what does it provide?
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?
Section 13 of Law 232/91 provides that marriage does not affect the proprietary independence of the spouses; each spouse retains and acquires his/her own property even after the marriage is celebrated. Obviously the spouses may acquire joint property; however, each spouse shall in such a case have an undivided share in such property. If the marriage is annulled, or dissolved, or if the parties have been separated, then either party may claim his/her contribution to the increase of the property of the other spouse (see 5.1).
2.2. Are there legal assumptions concerning the attribution of property?
The contribution of a spouse to the increase of the property of the other spouse is rebuttably presumed to be one third of the increase. If the petitioner proves that his/her contribution was greater than one third, he/she may be awarded a greater amount as compensation by the Family Court. The introduction of the presumption is an acknowledgment by the legislator of the difficulties the petitioner might face in proving his/her contribution, often after many years of marriage. If the evidence before the Court is not conclusive regarding the extent of the contribution of the petitioner to the increase of the property of the other spouse, then the Family Court may order that the petitioner be awarded one third of the increase in accordance with the presumption. If the petitioner seeks to be awarded an amount exceeding one third of the increase, then he/she shall be required to provide sufficient evidence to prove that his/her contribution exceeded one third.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
It is the increase of property and not the property in itself that is the subject of a matrimonial property petition in accordance with Section 14 of Law 232/91 (see 5.1). The Court should compare the property that either spouse had at the time the marriage was celebrated with the property that either spouse had at the time of separation, in order to determine whether such property has increased during the marriage of the parties. If there is no increase, or if the property of a spouse has decreased, then Section 14 does not apply and the other spouse can claim nothing. In view of the above, proving that the matrimonial property has increased during the marriage of the parties is essential. Whether this shall be done by establishing an inventory of assets or by other means is up to the parties.
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?
As stated above, Section 13 of Law 232/91 provides that marriage does not affect the proprietary independence of the spouses; each spouse retains and acquires his/her own property even after the marriage is celebrated. Thus, each spouse administrates his/her own property.
2.5. Are any legal transactions made by one spouse also binding on the other?
No.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
In principle each spouse is liable for his/her debt, unless special circumstances apply. Only the property of the respective spouse can be used to satisfy a creditor’s claim.
