What is Matrimonial Property Regime?
The matrimonial property regime only exists during the marriage period (from the marriage until the end of the marriage) and therefore, the matrimonial property regime does not include the issue of inheritance of the spouse’s property, support issues between husband and wife.
The matrimonial property regime sets out what belongs to whom during the marriage and how assets and debts will be divided up in the event of divorce or death.
Common questions about Matrimonial Property Regime:
1. Which matrimonial property regime does husband and wife have right to choose to apply?
- They have the right to choose to apply the statutory or agreed property regime.
2. What are the general principles of the matrimonial property regime?
- Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor.
- Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.
- When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.
3. What is the difference between statutory and agreed property regime?
- Statutory property regime includes of rules provided by the law based on the law’s prediction of the ground, origin and definition of property types (common property; separate property), rights and obligations of husband and wife towards each types of property and cases and principles of division of such property of husband and wife. Meanwhile, agreed property regime are legal rules agreed upon by the husband and wife themselves on the ground, origin and definition of property types (common property; separate property), rights and obligations of husband and wife towards each types of property and cases and principles of division of such property of husband and wife instead of the statutory property regime. However, agreed property regime shall be declared invalid if such agreement violates the law.
- The statutory matrimonial property regime must apply when husband and wife do not choose to apply a matrimonial property regime as agreed or their agreement on the matrimonial property regime is declared invalid by a Court.
4. Obligation of husband and wife when they have no common property or their common property is not enough to meet their family’s essential needs?
- Husband and wife shall contribute their separate property according to their financial capacity in order to meet their family’s essential needs.
5. Is it mandatory to have an agreement of both husband and wife for transactions related to the house being their sole domicile?
- Yes. Unless the house is under the separate ownership of the husband or wife, the owner has the right to establish, make and terminate transactions related to that property but shall ensure domicile for the couple.
6. Does the spouse who is the holder of the bank or securities account have the right to establish and make transactions related to that account?
- Yes, if that spouse is in transactions with third parties in good faith.
7. Does the spouse possessing a movable asset which is not required to be registered for ownership have the right to establish and make transactions related to that asset?
- Yes, if that spouse is in transactions with third parties in good faith and those transaction is in case the Civil Code prescribes protection of third parties in good faith.
8. Who shall be regard as third party not acting in good faith in transactions with a spouse related to bank account, securities account and other movable assets for which ownership registration is not required?
- A party shall be regarded as third party not acting in good faith in the following cases:
(a) Having been provided by a spouse about their agreed matrimonial property regime but still establishes and makes transactions against such information.
(b) The husband and wife have made public in accordance with laws their agreement on property and that third party has known or must know this agreement but still establishes and makes transactions against such agreement.
9. Whether husband and wife can make an agreement on establishment of matrimonial property regime or not?
- Yes. Before the marriage, the partners can choose to make an agreement on establishment of matrimonial property regime. Such agreement shall be made in written and be notarized or certified. And the agreed matrimonial property regime shall be established on the date of marriage registration.
10. What are the basic contents of an agreement on the husband and wife’s property regime?
- An agreement on the matrimonial property regime shall be included the following contents:
(a) Property determined as common property and separate property of the husband and wife;
(b) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;
(c) Conditions, procedures and principles of property division upon termination of the property regime; and
(d) Other related contents.
11. Whether the content of the agreement on matrimonial property regime be amended, supplemented or not?
- Yes. Husband and wife have the right to modify, supplement their agreement on the property regime. Such modification or supplement must be in writing and be notified or be certified.
12. How to determine the property of husband and wife upon to agreement?
- When choosing to apply the agreed matrimonial property regime, husband and wife may reach agreement on determination of property as follows:
(a) Matrimonial property includes common property and separate property of husband and wife;
(b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;
(c) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse; or
(d) Property is determined as otherwise agreed by husband and wife.
13. When does the agreement on matrimonial property regime become invalid?
- An agreement on the matrimonial property regime shall be declared to be invalid by a court when:
(a) It fails to meet the conditions on effect of transactions prescribed the Civil Code and other relevant laws; or
(b) It violates the regulations on the general principles of the matrimonial property regime; or
(c) It violates the regulations on the rights and obligations of husband and wife to meet their family’s essential needs; or
(d) It violates the regulations on the transactions related to the home being the sole domicile of husband and wife; or
(e) It violates the regulations on the transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets not required by law to be registered for ownership and use; or
(f) Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members.
While many couples can settle the questions of assets and debt distribution outside the courtroom, this written agreement still must comply with regulation of law and is not allowed to violate rights of other party or any other individual, organization.
Furthermore, when divorcing spouses fail to reach an agreement it is important to consult with family lawyers if the divorce would lead to potential disputes.