Risks When Purchasing Property under the Marital Community Property Regime

When planning the purchase of real estate, it is essential to be aware of the potential legal risks, especially where the property falls under the marital community property regime.One of the main issues in such transactions is that marital community property constitutes a concluded a marital agreement,This means that any disposal of a share in the property by one spouse without the participation of the other is invalid, unless the spouses have concluded a marital agreement providing otherwise.

What Checks Does a Lawyer Perform in a Transaction Involving Marital Community Property?

Any experienced real estate lawyer will begin by verifying several key circumstances, including:

• the date of acquisition of the property;
• the date of conclusion of the marriage;
• the existence of a marital agreement or a registered regime of separation of property between the spouses;
• the date of divorce (if applicable) and the allocation of shares following the divorce.

The fundamental principle for a valid transaction involving property held under the marital community property regime is that the disposal must be carried out jointly by both spouses. If only one spouse participates in the transaction without the involvement of the other, the transaction is invalid due to the non-divided nature of the community property.

Right to Challenge a Transaction in Case of Bad Faith by One Spouse

If one spouse, without the knowledge of the other, sells or mortgages property held under the marital community property regime, the law allows the aggrieved spouse to bring a claim challenging the transaction. Such claim must be filed within:

• six months from the date on which the spouse became aware of the transaction;
• but no later than three years from the date of the transaction itself.

Specific Issues When Purchasing Property Where a Marital Agreement Is in Place

Where spouses have concluded a marital agreement,it generally regulates how each spouse may dispose of their own property. In practice, however, omissions are often encountered that give rise to legal complications. One of the most common omissions is the absence of an explicit clause governing the disposal of the family home. As a result, even where the property is owned solely by one spouse, the consent of the other spouse may still be required for its sale.

This risk can be avoided by including a specific clause in the marital agreement granting the owner the right to dispose of the family home independently. For this reason , consultation with an experienced family law lawyer when drafting a marital agreement is strongly recommended.

What Happens with Subsequent Disposals of Property Acquired under the Marital Community Property Regime?

As a general rule, property acquired during the marriage is deemed to be held under the marital community property regime. However, there are situations in which such property becomes the exclusive property of one spouse, including:

• where a marital agreement has been concluded or a declaration of separation of property has been signed;
• following a divorce, where the property has been allocated by a court decision;
• in the event of a voluntary or judicial partition of the property;
• where a court decision orders partition during the marriage for justified reasons.

In addition, where the spouses are in a de facto separation, property acquired during the marriage may be recognised as the personal property of one spouse in subsequent court proceedings.