Chapter 14: Family law.

1.Introduction:
- Matrimony  is the core of the family law.
- This branch of the law covers the necessary requirements to marry and all the repercussions
of matrimony for spouses, in their civil status, in their economical situation.
- Custody, alimentary obligations, support,…
- Ways of dissolving marriage.
2. Economic system of marriage:
- It is the group of rules stated by law to regulate the different patrimonial issues arising from
the matrimony.
- It is a system of rules and principles that govern the ownership and management of the
goods of married persons.
- Life in common: different expenditures: made by both spouses.
- These expenses = Burdens of the marriage.
- Housework: Contribution to the burdens.
- Cc: possibility to set their own economic regime to rule their marriage
o If not: Standard system: Subsidiary regime.
o Main economic system: community of gains: Joint patrimony.
- Domestic potestas:
o Any of the spouses can dispose and manage within the sphere of the household and
the family; that is, to meet this ordinary necessities.
o When one of the spouses enters into a contract to cover ordinary necessities of the
family, he represents and compromises the family.
o The spouse who contributed with his personal patrimony shall be entitled to
reimbursement.
- Community system:
o Common assets and assets of the spouse contracting the debt shall be joint and
severally liable for such debt. Subsidiary: the assets of the other spose.
- Separation system:
o Spouse contracting the debt is directly liable for such debts. Spouse not act in the
exercise of the domestic potestas is subsidiary.
- Common rule: Necessary: consent of both spouses for the diposal of: family dwelling. (no
matter if it does only belong to one)
3.Matrimonial agreements:
- It is an agreement in which the spouses determine the economical system of their marriage.
It can take place before or after the marriage.
- They require a special form for their validity; they have to be recorded in a Public Deed.
- To be effective against third parties, they have to be registered with the Civil Registry.
- If concluded:
o B4 marriage: Not effective if the matrimony doesn’t take place within a year.
o After: Starts with the execution of the Public deed:
o Change of regimen cannot prejudice creditor (prior to the change).
- Spouses can:
o Agree on an economic system: stated by law.
o Stablish new one: ad hoc
  In case of inefficacy: Community of gains or correspondent to the regional
system.
- Types:
o ABSOLUTE SEPARATION:
 Under the regime of separation of property each spouse acting alone uses,
enjoys, and disposes of his property without the concurrence and consent of the
other spouse. Example: it is ruled in this way in Cataluña, Valencia and Is.Baleares
 In other parts of Spain, there is absolute separation when:
- The spouses so agree.
- When they discard the community of gains regime in a marital
agreement without fixing a particular system for their marriage.
- When during the marriage the participation or the community of gains
regimes are extinguished, unless expressly replaced by a different
economical system.
 As each spouse is the proprietary of his own assets, there is no joint property of
the matrimony in the absolute separation system.
 Each spouse keeps the property and also the administration, enjoyment and free
disposal of his assets.
 Obligations contracted by each spouse: Sole responsibility (unless entered into
carrying out household ordinary expenses).
 No joint property of the matrimony.
 Under the separation regime each spouse has to contribute to meet the burdens
of the marriage.
 The spouses shall contribute in proportion to their means. The housework shall
be considered a contribution to the burdens and it might give right to
compensation at the extinction of the separation regime.
 Responsibilitie against third parties:
 Debt is domestic: Contracting sp: Directly liable Non contract: Subsidiary
liable.
 Debt not related to the ordinary necessities: Contracting spouse: Only
liable.
 If the property of one of the spouses cannot be proven, it has to be understood
that the good belongs to both spouses “pro indiviso”.
 Each spouse obliged: reimbursement any amounts the other might have spent in
the burdens of matrimony which where part of the proportionalcontribution the
other should have made.
o PARTICIPATION:
 Under the participation regime, the economical system of marriage is a
separation regime during the matrimony but, upon dissolution of the system, the
spouse, who has earned less, has the right to participate in the earnings of the
other.
 During the marriage the participation regime works as if it was an absolute
separation system; the spouses keep their own property and they manage and
dispose of them at their own will.
  It is only at the end of the system that the possibility to participate in the gains of
a spouse arises.
 Upon dissolution of the participation system the spouse, who has earned more,
becomes the debtor of the other spouse for half the amount of his superior
earnings.
o COMMUNITY PROPERTY SYSTEM OR COMMUNITY OF GAINS SYSTEM:
Lacking a matrimonial agreement setting a different one or being it ineffective, the
economic system of the marriage shall be community property system. The
community property system is the subsidiary economical system of marriage in most
parts of Spain.
 Community property and separate property:
 The community property is a joint property of the spouses constituted
by the gains of the spouses during the existence of the regime.
o Assets obtained from the work or industry of any of the
spouses
o Fruits or products of the acquets as well as the fruits or
products of the separate property
o Property acquired under onerous title with community
property assets, whether the acquisition is made for the
community or for one of the spouses. In this latter case, the
spouse shall have a debt with the community property for the
amount paid.
o Property acquired through a jointly held right of redemption
o Property donated to the spouses jointly
 The separate property of a spouse is his exclusively.
o Goods and rights that belonged to each spouse before the
marriage
o Property acquired by one spouse under gratuitous title (ex:
donation, inheritance)
o Goods acquired at the expense or in substitution of separate
goods
o Property acquired through a right of redemption belonging to
one of the spouses
o Personal rights, inherent to the person and those which cannot
be transmitted “inter vivos”
o Compensations awarded to one spouse for damages to his
person or to his separate property
o Clothing and objects of personal use not having an
extraordinary value and instruments necessary for the exercise
of a profession, unless these tools form part of a common
establishment or enterprise.

 Burdens and obligations of the community property

  The community is responsible for the debts contracted by one or both
spouses for the benefit of the family and due to common interest. In
particular, the community property has to face:
o The support of the family, sustenance and education of the
common children and needs adapted to the usages and
circumstances of the family
o The acquisition and enjoyment of acquets and the
management of separate property
o The exploitation of business or exercise of the profession of
each spouse
o Donations commonly agreed by the spouses when they did not
agree that they had to be satisfied with separate assets
o Non-contractual liability of one spouse arising from actions for
the benefit of the community or within the scope of the
administration of the goods, unless they were due to deceit or
gross negligence of the spouse.
 If any of these obligations were to be faced with separate goods, the
spouse whose assets were used to pay community obligations shall
have a reimbursement right at the end of the regime.
 Liability of the community property:
 When both spouses: jointly incur in a debt; community property is
responsible for such debt.
 One spouse: Gains shall respond if:
o In the exercise of the domestic potestas.
o Management and disposal of community property goods.
o Ordinary practice of his profession
o In the ordinary administration of his separate property.
o Obligation contracted by one spose with the express consent
of the other.
o In de facto separation: In order to meet the expenses for the
support ad education of the children in the charge of th
community of gains.
In these cases no matter if the debt was contracted by one one
of the spouses the gains shall be joint and severally liable.

*In this cases no matter if the debt: contracted by one of the

spouses: gains joint and severally liable alongside the
patrimonyw of contractor spouse and if: exerc. Of domestic
potestas: patrimony of the other spouse shall be subsidiary
liable.

 Management of the community property:

  In the absence of covenant in a marital agreement, the community
property is subject to joint management of the spouses.
 A particular case in which consent of both spouses is necessary for the
disposal no matter if the good transferred is separate property; it is
the case of the family dwelling
 The acts performed by one of the spouses breaking the rule of joint
management are voidable, and being voidable, these acts might be
expressly or tacitly ratified by the other spouse
o If it is gratouitus acts on community assets shall be not
voidable but null and void if the other spouse´s content is ot
given.
 For the disposal of common property the consent of both spouses is
necessary. But in the same way as in the case above, if one of them
denies such consent or cannot grant it, the judge might authorize the
disposal when he considers it in the interest of the family.
 One spouse can take community assets without the other consent:
o for the exercise of his profession or the ordinary
administration of his own property.
o One spouse mage assets asnd dispose of kmoney or financial
instruments on his own if they appear at his name or ae in his
possession.
o Urgent and necessary expenses.
o If one tutor becomes tutor of the other or when a spouse is
unable to give consent, has abandoned the family or is a de
facto separation.

 Dissolution and liquidation of the community property:

 Causes that dissolve the community property regime:
o Dissolution of marriage (divorce)
o Annulment of the marriage
o Separation of the spouses ordered by the judge
o Agreement of a new regime in a marital agreement
 The community of gains might also end by a judicial decision at the
request of one of the spouses when any of the circumstances mentioned
in ART.1393 CC concur (the other spouse is judicially incapacitated,
declared spendthrift, absent, bankrupt or insolvent, guilty for
abandonment of the family…)
 Once the community dissolved: Liquidation procedure.
o Assets and debts:Calculated.
o Debts wit 3rd parties: have to paid.
o If the funds of the inventory are not sufficient to cover them, the
provisions of the occurrence and precedence of credits shall be
followed.
o Reimbursements due to each spouse.
o Remaining patrimony: Divided in a half.
o Should one of the spouses result to be a personal creditor of the
other at the time of liquidation, he can ask his credit to be
satisfied by the assignment to him of common assets, unless the
debtor voluntarily pays the debt.