The query was:
- My question is this, I want to marry and would like to know the pros and cons of marriage through separation of property, the property acquired in marriage with this type belong to both or who have been previously set that property. What if by Society of acquisitions, the assets acquired before marriage become the spouse once the act or remain the property of one? Le
thank you in advance for your response. Marita
of Arequipa.
Dear Marita, I answer
One important aspect of marriage is that it establishes a property regime known as "community property." However, the spouses before marriage or during marriage can decide for separate treatment of "Separate Property." I will explain each of them.
The system of "community property" and its effects
If spouses decide otherwise, the Peruvian law assumes that spouses choose the regime of community of property. According
this scheme, if both spouses or one of them owned property, they become part of the heritage of the "conjugal society." The main effect is that the administration or provision of these goods will require the participation of both spouses, for example, if you want to sell a property, like a car that was bought before marriage, in the act of transferring ownership of the vehicle must appear the signature of the other spouse.
Another significant effect is that goods produced profits for their owners, the law calls "fruits." For example, if one spouse brings to the marital assets of the Company a house, if it is rented, the rent goes part of common heritage.
This type of scheme is designed in the common life which require both spouses, so that assets contribute to the welfare of both. If the marriage is dissolved, return the private property of each spouse to the domain, that is, again become its exclusive property. The property has been acquired in marriage are the property of both and, with the dissolution of marriage, are to be settled, so that each corresponds to 50% of its value, although the spouses may agree otherwise and be freely one spouse who stays with a higher proportion of rights thereon common or even All rights.
How do I manage the property in the "community property"?
As for the administration of the property during the marriage, we have already said that even for personal property, all acts of disposal (as a sale, for example), require the participation or involvement of the other spouse.
However, the spouses may agree that either one of them who manage the assets of the conjugal partnership, which should be formalized through a "Special Branch", which always gives a Notary Public.
What about debts?
Regarding debt during your marriage, remember that personal assets are those that were acquired or received before marriage. These goods can not be use to diagnose guarantee or cover the debts created by the other spouse, unless there is proof that this debt was assumed for the benefit of both spouses.
This brings a very broad range of possibilities that may be unexpected and unwanted, as to not compromise one's own good, the indebted spouse not have to prove that the benefit of debt incurred by their partners in marriage only benefited the latter. This would be an important consideration in choosing property regime.
Why is called "community property"?
Finally, we should explain what are the "Conjugal". According to our legislation, Conjugal remaining assets are liquidated after the "Heritage of the conjugal partnership." In simple terms, if you end the marriage, each spouse returns to the assets contributed by itself, and the remaining assets, ie those acquired within marriage, would be called "Conjugal". Conjugal These should be divided equally for settlement.
The system of "separation of assets" or "separate property"
For the regime of "separation of assets, each spouse retains full ownership of their property and the free administration and disposal of these assets, including its fruits or income. In addition, each spouse is responsible for its debts with its own assets.
While it is a delicate issue that can be addressed, the scheme may be most appropriate when one spouse is concerned about the property acquired before marriage or received, or you want to keep individual management of their properties.
How do I choose the property regime?
The procedure is relatively simple. Whether you make the decision before or after marriage, the formality is opting for the scheme of "separation of assets" by deed, that is, before a notary.
The system of "community property" does not require this kind of formality, as we have explained before that the law considers that the couple chose the common property regime while not formally decided otherwise.
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