The society of livestock: General principles, administration and management

Through the company of maritals, the gains or benefits obtained indistinctly by any of them, attributed in half to the dissolution of the same, become common for the spouses. In the property company, each spouse does not have a half on specific assets, but an ideal quota equivalent to half of the assets that will correspond to him at the time when it is dissolved and subsequently liquidated. The regime of society of marital property is governed by a series of principles that by their special nature, endow the property and debts of marriage, with rules that must be taken into account in general when analyzing private property and commercial property.

A. General principles of application

1. Presumption of gain
   The assets existing in the marriage are presumed to be property while it is not proven that they belong privately to the husband or the wife. This principle enshrines the attractive vis of the society of marital property, according to which all the property of the marriage is of a marital nature. The precept itself introduces the character of presumption iuris tantum of the gain of the goods, that is, the possibility is admitted that by means of proof to the contrary, it can be proved that certain goods do not have a gain character, being an exception to the norm .

Thus, immovable property acquired for consideration by one of the spouses without expressing that it acquires for the property company, is registered in the name of the acquirer spouse allegedly gainable, this means that if it is not expressly stated in the title of acquisition that the amount of the same is exclusive, it is presumed that the property belongs to the company of property. And the balance of money in an indistinct or joint account is presumed to be gain.

However, since it is an iuris tantum presumption, it can be distorted with a test to the contrary, which must be expressed and fulfilled, without mere indications or conjectures being sufficient.

2. Confession of privatization of marital property
To prove between spouses that certain assets belong to one of them, it is quite the confession of the other, but such confession alone does not harm the forced heirs of the confessor, or the creditors. Accordingly, said confession has full effects in the discussions that may occur later between the spouses about the gain or private nature of certain assets. Hence, in many deeds of purchase made by only one of the spouses, the other appears to state that said good is acquired with private money from the buyer.

However, such a manifestation, if contested by the heirs or by the creditors, does not by itself prove the privative nature of the good, but must necessarily be accredited with the means of proof that so determine.

3. Attribution of gain
The spouses may, by mutual agreement, attribute the status of marital property to assets acquired for consideration during the marriage, whatever the origin of the price or consideration and the manner and terms in which it is satisfied.

This produces in practice not a few conflicts between the spouses when it is understood that certain private assets, which have been used and spent in the marriage, enjoy the attribution of gain contained in the same, not being able to end the company and proceed to its liquidation , to claim the exclusive amount of the good or money spent for the benefit of the company, that is, in that case, its refund would not proceed.

B. Administration and management

In the absence of an agreement on capitulations, the management and disposition of the marital property corresponds jointly to both spouses. Although it should be understood, in that sense, that in an agreement included in the matrimonial capitulations, the administration of the company may be agreed by only one of the spouses, this would go beyond the nullity of any limitation stipulation of equal rights between the spouses although yes it would be possible to establish agreements on the administration and management of specific assets.

The use of notarial powers between spouses for the administration and even for acts of disposition of the property of the company of property is frequent, although these powers are usually reciprocal, what is not valid is to limit the right of administration of one of the spouses.

The consent of both spouses can be express or tacit, having the validity given after the legal business that can be deduced even from actions from which knowledge of the act is deduced and its non-express opposition to it, which in some cases Cases may be equivalent to your tacit consent.

The acts of administration and disposition of the assets or common funds by only one of the spouses in times of normal marital coexistence, are presumed to be carried out for the benefit of the family and in the care and expenses of the property company. This implies that it will be up to the other spouse to prove that the holder acted in bad faith and for his benefit or exclusive profit or in fraud of the rights of the consort so that the legal consequences provided in arts. 1390 and 1391 CC. On the contrary, if the individual act of administration or disposition of common funds or flows by a spouse is carried out after the marital crisis occurs, even maintaining the coexistence, given the proximity of the device act with the moment of community breakdown of conjugal life, since there is a well-founded suspicion that the spouse may put his own interest before the family in his performance, he must prove that the act of disposition was in the interest or benefit of the family so that it is not presumed that it was carried out for the exclusive benefit or profit of the current spouse. Understand the doctrine that occurs the investment of the presumption of gain, and must be the person responsible for the burden of proof, as a natural consequence of the duty of reciprocal information between spouses and the availability and ease of proof that the disposing party has and owes require the court in application of the provisions of art. 217.6 LEC.

The spouses have the obligation to inform each other and periodically about the situation and returns of any economic activity. Their serious and repeated noncompliance entitles the other spouse to request the dissolution of the company of property.

When one of the spouses has performed an act in fraud of the rights of the other spouse, in addition to what is established for the assumption of damages to the company that has come to restore the amount of damage caused, if there was bad faith, the act is expendable If the rescission action is exercised, the act is invalid, even with third parties.

1. Exceptions to the joint administration
   A series of exceptions to the joint administration are envisaged for certain cases, and in this regard the following acts are valid:

• administration of assets and disposition of money or securities made by the spouse in whose name they appear or in whose power they are;
• made by each spouse disposing of the fruits and products of their private assets;
• monetary provisions of the company as an advance payment for the exercise of the profession or trade;
• realization of urgent expenses of a necessary nature;
• judicial authorization;
• acts performed by a minor spouse;
• disposition in will of property.

2. Acts of administration or unilateral provision by one of the spouses
The consequences that may result from the unilateral performance by one of the spouses of various acts are analyzed below:

to. Acts of disposition for consideration.

b. Acts available for free.

C. Acts contrary to the duty of information.

d. Liability for acts for the benefit of only one spouse for damages to society.

and. Liability for fraud to the rights of the other spouse.

3. Procedural legitimation
Both spouses separately are entitled to the defense of common property and rights, by action or exception. This legitimation can be for defense in trial or outside it.

In order to correctly determine the procedural legal relationship in the proceedings that are filed against one or both spouses in the cases that the company must answer, in the first place it is necessary to determine whether we are facing the exercise of real actions limiting the domain or on the contrary We are faced with personal actions born of legal business carried out individually by only one of the spouses.

1. If we are facing a real action that limits ownership of the property, the procedural exception of the necessary passive consortium litigation is being appreciated and thus in the claims made against only one of the spouses when the good to be answered is Ownership of the company of property (lease of property industry, contracts for the sale of property, etc.), it is understood that, although either spouse is authorized to defend common property and rights, does not mean that passively there is one of bear alone the consequences of a legal action directed against society, especially when its result can be negative for it. Therefore, the action must be directed against both spouses, who must necessarily be called together to the process to defend their interests.

2. If we are faced with the exercise of a personal action, born of the incidents that arise from the obligations arising from a legal business, in which only one of the spouses had intervened, the action can be directed against the contracting party, without the exception of the necessary passive consortium litigation exception, as may be the case of a housing lease contract signed by only one of the spouses, even if the family home is located there, naturally provided the marriage is found in a situation of conjugal cohabitation and the attribution of the use to the other spouse has not occurred or the subrogation made against the landlord.

This does not prevent any of them from benefiting society from taking any action without having to act together.

In short, only one of them can act as a plaintiff, but to be sued, in the cases analyzed, the intervention of both is required, although, in the second case related to the exercise of personal action, the action can only be directed against the contracting party, and only in the first case (real action) the intervention of both is necessary, since it is not necessary to sue the other spouse when an obligatory action is exercised, but it does apply in the case of real actions.