The garnishment of the assets of a non-debtor spouse for debts contracted by their partner (Reasons for why it is not possible to assign private property to an execution procedure in which the injured party has not been a party)

Abstract

The Supreme Court (Administrative Litigation Chamber) has ruled, in relation to the liability of a non-debtor spouse with his or her own assets for debts generated during the matrimonial property arrangement, that it is possible to garnish the salaries and wages of the non-debtor spouse obtained after the dissolution of the matrimonial property partnership. Among other arguments, it has cited the self-protection privilege enjoyed by the public administration for the exercise of its collection actions, as well as arguing that the regulations on the division and liquidation of inheritances are applicable, such that Article 1401 takes effect given the possibility that the spouses might extract matrimonial assets from creditors' actions. In my opinion, it could be accepted that the non-debtor spouse stand liable with their own assets, but only up to what would have corresponded to him or her in the adjudication of his/her matrimonial share, but in no case should ultra vires liability be accepted; that is, unlimited liability, as this reasoning asserts. The purpose of this work is to present the arguments that support the above conclusion and to propose, as the only way to protect the assets of one who was never a debtor, the separation-of-assets arrangement from the celebration of the marriage.