Couples in Andorra
1 - Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
As for the article 4 of the Qualified Law on Marriage, of 30th June 1995 (www.bopa.ad), the law applicable to a couple’s property in Andorra is:
1st.- The law FREELY AGREEED BY THE COUPLE IN A NOTARIAL DEED.
2nd.- If that agreement doesn’t exist (or in those aspects not regulated by the couple):
The law applicable would be the National Law of BOTH components of the couple.
3rd.- If still both National Laws differed:
The law applicable would be the Law of the PLACE WHERE THE COUPLE LIVES;
4th.- Finally, if there is no agreement, no commune national law and the couple don’t live together, then:
The regime of SEPARATION OF ASSETS will prevail.
There are no international conventions to be respected with regard to certain countries on this issue.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retroactivity)?
Of course the spouses (and even those that are not married, with the implicit condition to become married) have the option to choose the applicable law. That is in the first point of the law referred, so in Andorra the first option to apply is the option freely chosen by the spouses.
In principle, there are no limitations on which law the spouses can choose. About form, in Andorra the spouses must go to a notary to conclude this particular contract. They can also establish retroactivity, but that retroactivity could never change the legal situation of outsiders.
- Is there a statutory matrimonial property regime and if so, what does it provide?
- Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
In Andorra, the statutory matrimonial property regime is the SEPARATION OF ASSETS.
This regime means that each member of the couple has the ownership, benefits, administration and free disposition of all his/her assets, those that belongs to him/her before the marriage and those acquired after the celebration of the marriage.
In the regime of separation of assets, no goods are part of community property.
- Are there legal presumptions concerning the attribution of property?
Yes. Usually, if some asset has no clear ownership, it is attributed to both members by half; except for the assets without value and used for just one spouse, or those used professionally by only one spouse, that are presumed owned by that spouse.
- Should the spouses establish an inventory of assets? If so, when and how?
No, in Andorra the spouses should not establish an inventory of assets, as everything is owned by the one who acquired.
- Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and can it be pleaded against a third party?
Each member is charged of the administration of his/her own property. Each member is also entitled to dispose of his/her own property. The only exception is the disposition on rights over the familiar domicile and its furniture, as the other spouse must consent to that disposition. If this consent is not provided, the other spouse can make a claim against this disposition, for one (1) year after the knowing of the disposition.
- Are any legal transactions made by one spouse also binding on the other?
As each member owns his/her assets, one spouse cannot dispose of the other’s assets, except by a special power.
2 - Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
3 - How can the spouses arrange their property regime?
The spouses can arrange their matrimonial regime by concluding a marriage agreement, authorised by a notary.
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
In principle, all the regime’s provisions can be modified by contract, except of those affecting outsiders without their consent. For instance, if a member of the couple had given an asset as mortgage, that asset can’t be disposed in favour of the other member or an outsider without the permission of the one who has the mortgage.
The spouses can choose the matrimonial property regime that they prefer: separation of assets, community of assets, participation in acquiring….
3.2. What are the formal requirements and who should I contact?
The formal requirement is to sign a public deed authorized by a notary. A lawyer can prepare the contract, but it must be signed and authorized by a notary.
3.3. When may the contract be concluded and when does it come into effect?
The contract should be concluded at the beginning of the marriage (even before the marriage, but conditioned to the effective celebration of the marriage), before the spouses acquire property and incurred debts. But it can be concluded long after the marriage, provided no agreement go against outsiders.
3.4. May an existing contract be modified by the spouses? If so, subject to what conditions?
Yes, an existing contract can be modified by the spouses, subject to the same conditions of the first agreement that is agreed by both, signed and authorised by a notary.
4 - Can or must the matrimonial property regime be registered?
4.1. Do one or more registers of marriage contracts exist in your country? Where?
If there a marriage agreement is concluded before a notary, this must be inscribed in Civil Register. Notaries themselves promote the inscription.
4.2. Which documents are registered? Which information is registered?
Only notarial agreements are registered. The communication only includes: the type of contract (marriage agreement); the agreement’s date; the number of the notary’s file; the name of the couple and the notary’s name. No other mentions are allowed, especially those related to the agreements reached (type of matrimonial regime, for instance) (art. 110 of Civil Register Law) (www.bopa.ad).
4.3. How and by whom can the information in the register be accessed?
Everybody has access to Civil Register’s informations, at any time, if they have legitimate interest. They only must go to the Register and ask for information on a particular person, arguing, for example, that you have to make a contract with that particular person and that you need to know if there is any matrimonial agreement.
4.4. What are the legal effects of registration (validity, opposability)?
The registration is compulsory for the notary who authorises the marriage agreement. With the notary’s authorisation, the matrimonial agreement is valid; with its inscription, that particular matrimonial regime is opposable to everybody, as everybody has access to the Register to verify if any notary agreement is granted.
5 - What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
The definitive Sentence declaring the separation, nullity or divorce, determines the dissolution of any marriage’s community (art. 55 Law of Marriage). The use of the family’s domicile and its objects, not personal to anyone of the members, is determined, trying to help the weaker member and in interest of sons and daughters (art. 56).
5.2. Who is liable for existing debts after the divorce/separation?
The spouse who had incurred a debt is reliable for existing debts after the divorce/separation, with his/her own assets.
5.3. Does one spouse have a claim to an equalisation payment (balancing payment)?
5.3.1. In case of a property regime of community (or partnership) of acquests:
- Does the claim have to be satisfied by means of a payment or in kind?
- How is the claim assessed?
- What is the amount of the equalisation payment (balancing payment)?
- When is the claim prescribed?
5.3.2. In other cases (not community or partnership of acquests). Which ones?
As for article 57 of the Marriage Law, in case of separation or divorce, the spouse that became unbalanced regarding the other spouse and whose income, because of the separation, is worse than while the common life, has the right to be paid with an amount (balancing payment), determined by:
1.- the agreement of both members
2.- the age and health.
3.- the professional qualification and the possibilities to get a job.
4.- the income and needs of any spouse
5.- if he/she has lost the right to be pensioned.
6.- the marriage’s and common life’s duration.
7.- the past and future family’s dedication.
8.- the contribution with his/her job to the professional or commercial activities of the other spouse.
That amount can be changed (increased or decreased) with the agreement of both members, or by the Court’s decision, if there is a “substantial modification of the economic resources of each of the spouses”.
6 - What are the consequences of death?
Everyone can establish the rules of his/her succession at the moment of his/her death (“certus dies, incertus quando”).
If there is no valid will, then the Law establishes what the surviving spouse receives:
- If the deceased have sons/daughters, grand-sons/grand-daughters, or other alive descendants, then the living spouse has the right to USE AND RENT HALF of the inheritance, while he/she is still alive.
- If the deceased have NO son/daughter, grand-son/grand-daughter, or other alive descendant, then the living spouse has the right of FULL OWNERSHIP OF ALL THE INHERITANCE (except for the right of the deceased’s parents to claim for the 25% of the inheritance).
This DOES NOT APPLIE if the couple were divorced or separated, even without any official paper.
7 - Does your national law provide a special matrimonial property regime for multi-national couples?
8 - What is the legal position concerning the property of registered and non-registered partners?
As for the Law 4/2205, the legal dispositions on property of registered partners and married partners are the same.
But in the case of registered partnership, the agreement about the couple’s assets, authorised by the notary, is mandatory, prior to the legal subscription and recognition of the partners as a couple.
On the contrary, non-registered partners have no access to Register, need no paper (notarial or not) and have strictly no influence over each member assets.