Marriage and Debts: 5 things to know
If one of the spouses has bought a car by leasing, or has signed a current account check or a bill of exchange, or together with the other spouse has signed a loan that he is unable to honor, what happens in the event of separation? Who pays the debts?
The property regime
The starting point of any reasoning on the payment of debts incurred during the marriage and on their consequences in the event of divorce concerns the choice of the patrimonial regime: separation of assets or communion of assets. This decision must be made on the day of the fateful “Yes”.
If you do not expressly decide for the separation, by law you will automatically find yourself in a system of community of goods. It is intuitive that in order to protect oneself from debts and the negative consequences of an economic activity on one’s own, the regime of separation of assets must be chosen.
The separation of assets
With this regime, regulated by Article 215 of the Civil Code:
- each of the spouses remains the exclusive owner of the goods acquired during the married life ;
- each of the spouses retains exclusive ownership of the goods purchased before marriage (as in the community of property regime);
- of debts and personal obligations only the spouse who contracted them is liable;
- even the debts contracted in the interest of the family, for example the purchase of a car or a computer, only the spouse who bought the good responds.
The communion of goods
According to article 177 of the civil code are part of the communion:
- the goods purchased together or separately during the marriage ;
- the fruits of the property of each of the spouses, received and not consumed when the communion is dissolved (for example the sums received for the rent of an apartment that was owned by one of the spouses before marriage)
- the proceeds of the separate activity of each of the spouses if, at the termination of the communion, they have not been consumed (for example salaries and professional fees);
- companies managed by both spouses and established after marriage. In the case of companies belonging to one of the spouses prior to the marriage but managed by both, the communion only concerns profits and increases.
According to Article 179, they are excluded from communion because they are considered personal property:
- the assets of which the spouse was the owner before the marriage;
- those he also bought during the marriage by succession or by donation;
- goods for personal use or that are considered necessary for the exercise of a profession.
In practice, what happens
In the cases proposed at the opening, leasing a car, checking account or a bill of exchange, signing a loan, under the property separation regime the other spouse has no obligation towards creditors, unless, of course, he is not co-signatory of the obligations assumed.
His condition is more complex if he is in a regime of communion of goods. The general principle sanctioned by the jurisprudence is that “as a rule, even in a system of legal communion, the debts of a spouse personally to satisfy the needs of the family do not also answer the spouse of the latter. Exceptions to this principle must be made, thus determining the responsibility of both, if the spouse who has contracted with third parties, has received explicit or tacit power of attorney, or if, on the basis of the principle of not mere appearance, but of reasonable reliance by third parties and of their consequent protection, it is to be assumed by facto concludentia that the contracting spouse has acted not only on his own, but also in the name of his spouse ”.
In the event that the judge determines, for example, that the other spouse also agreed to purchase the machine on leasing, creditors will be able to rely on the assets of the communion and on the personal assets of the spouse who has not contracted the debt. But with a limit as established, it established sentence 6575/13 of the Court of Cassation which nonetheless provides that the spouse who is not debtor after the attachment and sale of the property at auction has the right to receive half of the gross sum obtained.
Can we change the regime?
At any time the spouses can change their patrimonial regime, and they can also, eventually, retrace their steps and make a new change: for example, after deciding to separate, they can later return to communion. In any case, they must go to a notary to draft a public deed which will be noted on the sidelines of the marriage certificate at the registry office where the marriage was celebrated.
As regards the communion of goods, there are cases in which it is dissolved by law as established by Article 191 of the Civil Code:
- for a declaration of absence or presumed death of one of the spouses;
- for the cancellation, dissolution and termination of the civil effects of the marriage;
- for the failure of one of the spouses.