Marital Property in Argentina
Understanding the matrimonial property system in Argentina; how getting married effects your property rights…
One key legal issue to consider when moving to Argentina is the country’s matrimonial property system. The system decides how assets acquired by a married couple are owned and managed, and how they should be distributed if the couple divorces or if either partner passes away.
Which Matrimonial Property System Applies in Argentina?
Pursuant to the Argentine Civil Code, the relationship of spouses (between them and with third parties) regarding their assets is governed by the law of the place of the couple’s first domicile after marriage, with the exception of property transactions forbidden by the law of the assets’ location. The law applicable pursuant to this rule cannot be changed by a subsequent change of domicile. This means that if, after marrying, a couple’s first place of domicile was outside of Argentina, Argentine Law will consider that country’s matrimonial property system as being applicable to the couple.
However, this rule may be trumped by property law prohibitions and by the entrenched conservative habits of local lawyers and conveyancers.
The Argentine Matrimonial Property System
In Argentina, all assets acquired by the spouses after marriage are considered ‘marital property’ (bienes gananciales), unless they were acquired as gifts or inherited. An asset that qualifies as ‘marital property’ can be freely used and disposed of by the spouse who owns it. This rule has certain exceptions (such as real property or shares in a corporation), where the assent of the other spouse is required prior to the disposal of an asset. A creditor of a given spouse will only be able to foreclose that spouse’s assets (either marital or non-marital).
When a marriage is terminated (either through the death of one of the spouses, divorce, personal separation, or, in certain cases, annulment of the marriage), the assets that qualify as marital property are grouped together and—after the applicable liabilities and claims of each spouse have been worked out, according to special rules—divided and distributed equally between the spouses.
With the exception of any real property where the spouses live, if they have minor or legally minor children, each spouse may freely manage and dispose of his or her assets that do not qualify as marital property. These will essentially consist of those assets acquired before the marriage, or during the marriage as gifts or by inheritance. Furthermore, each spouse keeps his or her non-marital property (bienes propios) after the termination of the marriage.
As an exception to this matrimonial property system, in certain exceptional cases listed in the Civil Code, spouses may apply to a court for a separation of property regime. This exceptional regime is not available by agreement.