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Economic Matrimonial Regime and business exercise regarding the recent ruling of the Constitutional Court that annuls the Valencian Law of Matrimonial Economic Regime
The individual entrepreneur in the exercise of his activity, must take into account that the assets of his marriage may be subject to liability for the obligations contracted with third parties in commercial traffic.
This linkage of community property in the event of business activity by one of the spouses, can be avoided by the marriage if in marriage agreements, they stipulate another matrimonial property regime. The most common and recommended assumption is the establishment of the property separation regime, which would determine the absolute separation of the spouses' assets.
It is also necessary that we take into account that they will be liable for the credits of third parties generated by the spouse's business activity, all those assets that were joint assets at the time of the birth and maturity of the debts, although the later date had modified the matrimonial economic regime to safeguard such assets.
Well, once we have decided the matrimonial property regime of our marriage, let's see then, what steps we must follow.
For this, we highlight the recent ruling of the Constitutional Court of April 28, 2020 that has annulled the Valencian law of matrimonial property regime approved in 2007 and that came into force in July 2008, since when it was approved, state powers were being invaded.
This Valencian law approved that, in the absence of an express pact between husband and wife -what are called matrimonial agreements-, instead of applying the marital property regime as a supplementary legal regime provided for in article 1316 of the Civil Code, the regime of Separation of Property.
This allowed Valencian couples to avoid the process of separation of property and, in addition, in the event of divorce or separation, everything would be easier.
From now on, the consequences that this annulment will have by the Constitutional Court assume that couples who have married since 2008 without presenting a deed of capitulations will now have to register it before a Notary if they want the separation of property to be applied to them.
And, in the event that you decide to marry, if you do not agree to another regime in marriage agreements, your marriage will be governed again by the community property regime.
In short, it is difficult to value one option over the other. In any case, if one of the spouses is going to carry out the business activity, it is important that they know the existing liability system and how the risks of their activity can affect the assets of both, to later decide the regime applicable to both spouses.