The confession of privacy and the presumption of community property. Its effectiveness vis-à-vis creditors and heirs before the privacy attribution agreement

Family right

Abstract

In logical coherence with the principle of autonomy of the will, article 1315 of the Civil Code makes it possible for the spouses to stipulate or not the matrimonial economic system that they consider most convenient before getting married or afterward, during its validity. Although, in the absence of an agreement or when the agreement becomes ineffective ex article 1316 of the Civil Code, the joint venture operates as a supplementary first degree matrimonial regime. It constitutes a community-type economic-matrimonial regime, which is articulated around the postulate that declares the profits obtained as common and that attributes a consortium or community property to the assets acquired for consideration with a charge to the common heritage, its validity constant. This last idea expresses what is known as the so-called principle of real subrogation, stated in general in articles 1347.3 and 1346.3 of the Civil Code. All this without prejudice to the coexistence of a "primary matrimonial regime" applicable to all economic regimes, of which article 1324 of the Civil Code on the confession of privacy is a part, which serves to destroy the so-called presumption of profit contained in the Article 1361 of the aforementioned legal body that operates on the absolute preponderance of community assets over privative ones and the so-called attractive face. This presumption of gain is iuris tantum in nature, so that in order to disprove it, convincing and serious evidence is needed, circumstantial evidence is not enough. In this context, the General Directorate of Legal Security and Public Faith considers the agreement of attribution of privacy to be valid, that is, when both spouses assign a private nature to a property acquired for consideration by one of them, when it is difficult to prove the origin exclusive of the funds used in its acquisition. This study is centre to study on both legal institutes and their effectiveness in relation to third parties, creditors and heirs (legitimates) against the privacy attribution agreement that we will also analyze.