Participación en los Gananciales (Régimen Matrimonial Chile 2023)

Summary

In this video, lawyer Francisca explains the concept of the 'participation in the gananciales' regime, a middle ground between community property and separation of assets in marriage. She breaks down how it works, including how to establish this regime before or during marriage, and how it can be changed. The regime promotes mutual support within a marriage, ensuring fairness when one spouse earns more. It ends upon divorce, death, or mutual agreement. Francisca also provides practical advice on when this regime is beneficial, particularly for couples where one spouse may take time off work to care for the home.

Takeaways

• 😀 The participation in community property is an intermediate regime between joint property and separation of assets, combining both the communal aspect of marriage and the individual autonomy of each spouse.
• 😀 This regime ensures that both spouses are equal partners, making decisions independently without needing the other’s approval, except for significant financial matters.
• 😀 The participation in community property can be agreed upon before marriage through a prenuptial agreement or at the time of marriage by notifying the civil registrar.
• 😀 The regime allows for changing the marital property regime after marriage by executing a public deed and registering it with the civil registry.
• 😀 While married under this regime, each spouse manages their own assets and debts independently, without needing permission from the other, though major decisions may require mutual agreement.
• 😀 Upon termination of the regime, the spouse with fewer or less valuable assets is entitled to a participation credit against the other spouse.
• 😀 To calculate participation credits, each spouse’s original assets (patrimonio originario) and the value of assets acquired during the marriage (patrimonio final) must be evaluated, along with any debts incurred.
• 😀 The regime takes into account both spouses' contributions, recognizing that one spouse may not have generated income due to domestic responsibilities but will still be entitled to share in the other spouse's earnings.
• 😀 The regime can end upon the death of either spouse, annulment of the marriage, legal separation, divorce, or mutual agreement to switch to another regime.
• 😀 The regime is suitable for couples where one spouse stays home to care for the family, as it compensates the stay-at-home spouse for their non-financial contributions once the regime ends.
• 😀 If you're unsure whether this regime suits your situation, consulting with a legal expert is advisable, and the video offers further resources to get in touch with one for more information.

Q & A

What is the concept of 'participation in the earnings' in marriage?

Participation in the earnings is an intermediate matrimonial regime between community property and separation of property. It acknowledges that the marriage is a community of life, but it also respects the individual property rights of each spouse. In this regime, both spouses manage their own assets, but there is a participation in the earnings made during the marriage.

How does the participation in the earnings regime differ from community property and separation of property?

Unlike community property, where assets are shared, the participation in earnings regime allows each spouse to retain their individual assets. However, it recognizes mutual support in the marriage. In contrast to separation of property, which maintains complete separation of assets, participation in earnings acknowledges the contributions of each spouse, even if they have not contributed financially.

How can a couple enter into the participation in the earnings regime?

Couples can agree to enter into the participation in the earnings regime either before marriage through a prenuptial agreement called 'capitulaciones matrimoniales', or at the time of marriage by informing the civil registry officer. If they are already married, they can switch to this regime at any time by drafting a public deed and registering it with the civil registry.

How does the participation in the earnings regime operate during the marriage?

During the marriage, each spouse behaves as though they are under the separation of property regime. They manage their assets independently without needing permission from the other spouse. However, for major decisions that affect the family's finances, such as selling property, both spouses must agree.

What happens if one spouse acquires fewer assets or assets of lower value during the marriage?

At the end of the regime, the spouse who acquired fewer assets or lower-value assets is entitled to a participation credit against the other spouse. This ensures that even if one spouse earned less, they are compensated for their contributions to the marriage.

What is the 'patrimonio originario' (original assets) in the context of participation in the earnings?

The 'patrimonio originario' refers to the value of each spouse's assets at the start of the marriage, minus any debts they owe. This initial value is used to calculate their participation in the earnings throughout the marriage.

How is the final patrimony calculated at the end of the regime?

The final patrimony is calculated by determining the total value of the assets acquired by each spouse during the marriage, minus their debts. This amount will then determine how much one spouse may owe the other in terms of participation.

Under what circumstances can the participation in the earnings regime be terminated?

The regime can be terminated if either spouse passes away, if the marriage is declared null, if the couple divorces or judicially separates, or if both spouses agree to change to another matrimonial regime.

When is the participation in the earnings regime a fair choice for couples?

This regime is particularly fair for couples where one spouse works outside the home while the other takes on the role of managing the household and raising children. It ensures that the spouse who may not earn income during this period is compensated for their contributions.

What should someone consider when deciding whether the participation in the earnings regime is suitable for them?

Individuals should consider whether they plan to have one spouse working and the other focusing on the household. If there is an expectation of differing earnings during the marriage, this regime ensures that both spouses are fairly compensated at the end of the marriage, especially if one spouse takes on household responsibilities.