Basics on Macanese matrimonial finances



Basics on Macanese matrimonial finances

Presented by

Paula Nunes Correia

Faculty of Law,

University of Macau (China)

I. Introduction

Macao, a former Chinese territory under Portuguese administration, is at the present moment, just like Hong Kong, a Special Administrative Region (SAR) of China, ever since the land was handed over to the People’s Republic of China (PRC) on December 20, 1999. Being a SAR implies holding a few, although significant differences from the regime of Mainland China. In what the Macanese legal system is concerned, it has been subject to a prior reformation in order to adjust the laws previously in force to the specific needs of the region and its population. This former movement of adaptation (commonly called “localization”) of the laws and regulations was initiated some time after the signature of the Joint Declaration, by both the PRC and Portugal, back in April 1987, to be finished by December 1999.

This being said, even though the legal system presently in force in Macao Special Administrative Region (MSAR) continues to be part of the same model of law formerly applicable – that is the Continental European or Civil Law model, as it is strongly and inevitably inspired in its predecessor, to be precise in the Portuguese legal order compelling in the territory until its return to Chinese sovereignty – it simultaneously bears undeniable singularities.

My main purpose this time is to introduce you to some general principles and issues regarding patrimonial relationships between spouses, in the context of the Macanese law of course. I shall bring in the duties emerging from marriage, naturally focusing on their patrimonial aspects. A short notice on the general principles governing the administration of the couple’s assets will follow, as well as on those regulating the spouses’ debts, for which they can either be jointly or exclusively liable, depending on the type of the debt incurred. Then I plan to introduce the subject on the matrimonial assets regimes, which will be preceded by a comment on matrimonial conventions, both ante-nuptial and post-nuptial conventions. With regard to the matrimonial assets regimes, a note will be made on the supplementary regime, which is the participation in acquests regime, as well as on the remaining legally typified regimes: communion in acquests, general partnership and separation regime.

II. Matrimonial finances

For a reference, the essential substantive regulation of the following matters is contained in the Civil Code of Macao (MCC), to be more precise in its fourth book[1], compelling in the territory just before its return to Chinese sovereignty.

Matrimony produces a variety of personal and non-personal, maxime financial, effects. My attention will logically concentrate on the latter. For such purpose I shall start with the reciprocal marital duties. In spite of being generally classified as personal effects of marriage, they present different features, as some of these obligations ought to be considered mainly moral, and others have a mixed, or even a clear economic expression. In what the patrimonial effects of marriage are strictly concerned, I shall present some general principles on the assets administration by the spouses, as well as on the legal responsibility with regard to the spouses’ debts, being both important effects independent from the assets regime. A notice on general principles about matrimonial conventions and assets regimes will, finally, follow.

1. Patrimonial duties issued from matrimony

Two fundamental principles govern the effects of matrimony in general: equality concerning the spouses’ rights and duties and shared leadership of the family, about which husband and wife must agree on the orientation of life in common, having in consideration the family wellbeing, as well as each other’s interests (article 1532, paragraphs 1 and 2 MCC[2]).

In addition, I would like to inform at once that matrimony is necessarily a heterosexual relationship (article 1462), being homosexual marriage not even considered a non-valid matrimony, but rather juridically non-existent [article 1501, paragraph e)].

In what the spouses’ obligations are concerned, there are five marital duties born with marriage, imposing reciprocal obligations on them: respect, fidelity, cohabitation, cooperation and assistance (article 1533 and subsequent). The duties of respect, fidelity and cooperation are mainly moral, while the duties of cohabitation and assistance have more material characteristics. Therefore, I shall mainly focus my attention on the latter. Nonetheless, I shall still dedicate a few words to the former.

Respect is a “residual duty”, in the sense that a violation of any of the other four marital duties is also a breach of the duty of respect. As a result, only non-direct violations of the former rights may be considered as an infringement of the latter. This duty involves a duty of respect towards each other’s personality, both as a human and a married person, namely preventing offenses to one’s physical and moral integrity, honor, image or sensibility (being at once a negative and a positive duty).

Fidelity means at once the (negative) duty to keep sexual relations exclusively between spouses, to refrain from intentionally having consummated heterosexual relations with a third person, i.e., adultery. However, infidelity is not synonym for adultery: homosexual relations (normally not regarded as adultery) and relations with a third person that may legitimately make the other spouse or the public suspect the existence of adultery may be as well considered breach of fidelity.

Cooperation is also and mainly a moral duty. Law cannot oblige spouses to love each other, but it does impose on them a duty of mutual help and support, as well as a duty to assume together the responsibilities inherent to the family life that they have founded (article 1535). Spouses have the duty to mutually support each other, in the good and bad moments (first aspect), as well as the obligation to assume together the responsibilities inherent to the family life that they have both established as, for instance, the interest in their children’s health and education (second aspect).

Cohabitation means the duty to live with each other, sharing house and having economy in common, involving as well the duty to have sexual relations with each other (debitum conjugale). This whole duty means the traditionally called communion of bed, table and lodging altogether (tori, mensae et habitationis). The place where spouses live jointly is their family residence, which must be chosen with the agreement of both, taking into consideration the necessities of their professional life and the children’s interests, as well as the protection of the unity of life in family. In case of disagreement, the court will determine or modify (depending on the case) the family residence, at the request of any of the spouses (article 1534). I shall mainly concentrate on one of the two aspects of the concerned duty of cohabitation that may be of economic relevance: communion of housing.

With regard to the communion of table, spouses are reciprocally obliged to share a life in common economy (spending and saving for their common benefit), as the family they have founded is a common project for which they are equally (morally/financially) responsible. They are namely obliged to share their duties for living a life in common, under one same roof and at one same table.

Concerning the aspect of being obliged to share one same lodging, to share one residence in common, the concept of family residence is vital, assuming a particular importance at the moment when the unity of life in family is threatened by the dissolution of matrimony. Actually, family residence is especially protected not only in a divorce situation (imminent, pending or already declared), but also in case of death.

One of the requirements for a divorce by mutual consent consists in the spouses’ agreement on the destination of the family residence [besides the agreements on alimony to the spouse in need and on parental authority over minor children, being the case – article 1630, paragraph 2 and article 1242 of the Code of Civil Procedure (MCPC)] which will be effective from the moment the judge or the registrar proclaim the divorce. The agreement on the utilization of the family residence is also required for the time the divorce procedure is pending (article 1630, paragraph 3). This agreement on the destination of the family residence (namely the right to occupy, to live or reside in it) is mandatory.

In a divorce by litigation, the court can allocate the family residence to any of the spouses (disregard his/her eventual fault), at his/her request, despite the fact of being a common asset or an asset exclusively belonging to the other spouse, taking into consideration the necessities of each of the spouses, the interest of the children and any other reasons that the court intends to attend. The allocation decided by the court is done by means of a tenancy agreement (either imposed on the other spouse, or on a third party), although subject to a special regime (article 1648, paragraphs 1 and 2, article 1042, paragraphs 2 to 4 MCC and article 1249 MCPC).

Finally, in case of dissolution of marriage by death, there is also a special protection of the right to inhabit the family residence by means of a preferential allocation of such right to the widow/widower (article 1942).

At last, the duty of assistance comprehends the obligation to contribute for the charges with family life according to each other’s possibilities, as well as the obligation to pay for alimony (articles 1536, 1537 and 1856). However, this second aspect only becomes relevant in case a separation occurs. Having Macao’s legislator abolished the separation from bed and board or legal separation, this (marital) duty to pay for alimony practically stands now for when a de facto separation (separation of spouses) occurs (articles 1856 and 1536, paragraph 2), making no sense, as far as I am concerned, to speak of a duty to contribute for the expenses with family life in such a context, as there is no family life, or communion of life between spouses if they are separated. Differently, while the spouses live together, I would say that the duty to pay for alimony is, in some way, absorbed by the obligation to supply for the charges with family life, having no autonomy vis-à-vis the latter.

With regard to the obligation to pay for alimony, the duty lasts for the time the de facto separation endures, if the separation is not imputable to any of the spouses, or is equally imputable to both of them (article 1536, paragraph 2). In case the separation is imputable to one, or to both spouses, this obligation, in favor of the other spouse, only stands, in principle, for the spouse considered mainly, or solely at fault. However, under exceptional circumstances and for equity reasons, the court may impose such duty on the innocent, or the least at fault spouse, taking into consideration, particularly, the duration of marriage and the cooperation that the other spouse has rendered to the couple’s economy (same article, paragraph 3). This obligation, in what the amount of alimony is concerned, follows the general principles applying to alimony, that is, it depends on the necessities of the creditor and on the possibilities of the debtor. But doubts may arise when it comes to define the necessities of the creditor under such circumstances: should they be restricted to sustenance, lodging and clothing, or should it be granted the same economic and social level that she/he had before the separation occurred (according to the debtor’s possibilities, of course)?

With reference to the obligation to contribute for the charges with family life, both spouses are obliged, according to each one’s possibilities. This duty can be fulfilled by any of the spouses by means of affecting his/her resources to those charges and by the work used up at home or in maintaining and educating the children (article 1537, paragraph 1). This being said, each spouse may fulfill his/her obligation either by means of affecting his/her resources to the charges with family life, or by means of doing the house work, or maintaining and education the children, or still by doing both, depending on the agreement they have made about the orientation of life in common (supra). In case of violation, any of the spouses can demand to directly receive part of the other spouse’s income or profits to be determined by the court (same article, paragraph 3).

2. Administration of the couple’s assets

The general principles governing the administration of the couple’s assets are as follows: each spouse has the administration of his/her personal assets (article 1543, paragraph 1); the two of them, together, have the joint administration of their common assets (article 1543, paragraph 3, 2nd part).

These are imperative rules, which cannot be modified by the spouses by celebrating a matrimonial convention [neither a pre-nuptial, nor a post-nuptial convention – articles 1569, paragraph 1, subparagraph c) and 1578, paragraph 3].

Nonetheless, each of the above mentioned rules has some exceptions. Therefore, regarding the first one – each spouse has the administration of his/her personal assets –, each of the spouses still has the administration: of the chattels, exclusively belonging to the other spouse, solely used by the former as a work instrument, that is, with which the administrator has a special link [article 1543, paragraph 2, subparagraph e)]; of the other spouse’s personal assets, in case of absence or impediment of the latter, that is, if the other spouse is not capable of performing his/her administration for being in a remote or an unknown place, or for any other reason, as long as he/she has not voluntarily and legally empowered a representative to administrate those assets [same article and paragraph, subparagraph f)]; of the other spouse’s personal assets if the latter has conferred such powers by means of a mandate [which terms are generally provided in article 1083 and subsequent – article 1543, paragraph 2, subparagraph g)].

Moreover, now regarding the second mentioned rule – that both spouses, together, have the joint administration of their common assets –, each of the spouses still has the administration: of the chattels, held in common, solely used by the former as a work instrument, that is, once again, with which the spouse administrator has a special link [article 1543, paragraph 2, subparagraph e)]; of the common assets, in case of absence or impediment of the other spouse, that is, if the latter is not capable of performing his/her administration for being in a remote or an unknown place, or for any other reason, as long as he/she has not voluntarily and legally empowered a representative to administrate those assets [same article and paragraph, subparagraph f)]; of the common assets, if the other spouse has conferred such powers of administration by means of a mandate [same article and paragraph, subparagraph g)]; of the incomes received for his/her work [same article and paragraph, subparagraph a)]; of his/her author rights [same article and paragraph, subparagraph b)]; of the common assets brought by him/her into marriage, or acquired for free after matrimony, as well as of the assets in replacement of the former [same article and paragraph, subparagraph c)]; of the assets that have been donated or left to both spouses excluding the other spouse from its administration, except when the assets have been donated or left in view of the legitime or legal portion of the other spouse [same article and paragraph, subparagraph d)]; finally, each of the spouses also has the legitimacy to practice acts of ordinary administration regarding the assets held in common by the couple (article 1543, paragraph 3, 1st part).

3. Spouses’ debts

Both husband and wife may legitimately incur debts without each other’s consent (article 1557, paragraph 1). For the effect of determining the spouses’ responsibility (infra), the date in which the debts were incurred coincides with that of the fact which has originated them (same article, paragraph 2).

Spouses are jointly responsible for the following debts (article 1558, paragraph 1): the ones incurred by the two of them, or just by one of the spouses with the other’s consent, before or after the wedding and irrespective of the assets regime applicable [same article and paragraph, subparagraph a)]; the debts incurred, by any of them, to pay for the normal charges of family life (implying small debts, like with food, clothing, medical fees, and so on, occurring ordinarily or periodically), before or after the wedding and despite the relevant assets regime [same article and paragraph, subparagraph b)]; the ones incurred during matrimony, by the spouse administrator and within the limits of his/her powers of administration (supra), for the couple’s common (economic or moral) profit (which is not, in principle, presumable – same article, paragraph 3 –, being assessed by the spouse’s objective purpose when he/she incurred the debt, and not by the outcome [same article and paragraph, subparagraph c)]; the debts incurred, by any of the spouses, within the practice of commerce, unless it is proven that they were not made for the couple’s common profit, or if either the separation of assets regime, or the participation in acquests regime are in force [same article and paragraph, subparagraph d)]; the debts impeding donations, inheritances or legacies if, according to the relevant assets regime, the donated or inherited assets become common patrimony [same article and paragraph, subparagraph e) and article 1560, paragraph 2]; the debts incurred before the wedding, by any of the spouses, for the couple’s common profit, whenever the general communion assets regime is in force (as, for instance, the wedding party costs), (article 1558, paragraph 2); the debts encumbering common assets, even if their payment is due before the wedding (article 1561, paragraph 1); the debts that encumber personal assets if they are caused by the receipt of the relevant profits and these are considered common according to the assets regime applicable (article 1561, paragraph 2).

Regarding these debts of joint responsibility, the following assets are concerned (article 1562): under the participation in acquests assets regime, the spouses’ personal assets respond conjointly and, whenever the assets of one of the spouses are lacking or insufficient, the assets of the other spouse respond subsidiary [paragraph a)]; under the separation of assets regime, the spouses’ personal assets respond conjointly [paragraph b)]; under any of the communion of assets regimes (either general communion, or communion of acquests), the couple’s common assets respond for the debts and, whenever these assets are lacking or non-sufficient, the personal assets of any of the spouses respond in solidarity [paragraph c)].

Each spouse is exclusively responsible for the following debts (article 1559): the ones incurred, by each of the spouses, without the other spouse’s consent, before or after the wedding, unless they were incurred to pay for the normal charges of family life, or by the spouse administrator for the couple’s common profit and within the limits of his/her administration powers [supra – paragraph a)]; those originated in crimes or other facts imputable to one of the spouses, such as indemnifications, sanctions, restitutions, judicial fees or fines, unless those facts, implying simply civil liability, fall under the joint responsibility of both spouses [supra – paragraph b)]; the debts that encumber personal assets of one of the spouses, unless they are caused by the receipt of the respective profits and these are regarded as common according to the assets regime applicable [paragraph c) and article 1561, paragraph 2 – supra]; the ones encumbering donations, inheritances or legacies, provided that the relevant assets belong exclusively to one of the spouses (article 1560, paragraph 1).

With regard to the debts of exclusive responsibility of one of the spouses, the following rules are in force: the personal assets of the debtor spouse respond for such debts as well as, being applicable any of the communion of assets regimes, his/her share in the common assets, subsidiary (article 1564, paragraph 1); however, the debtor spouse’s work income and his/her author’s rights (despite their possible qualification as common assets according to the relevant assets regime) respond simultaneously with his/her personal assets (same article, paragraph 2).

4. Matrimonial conventions

In what nuptial agreements are concerned, there has been a significant change in Macao.

Until October 31, 1999, there were two possibilities regarding the future spouses’ matrimonial assets regime: they would either declare nothing prior to the wedding, or settle the issue by celebrating a convention beforehand. Once married, their previous (tacit/express) choice became irrevocable. In the silence of the parties, the supplementary legal assets regime was applicable, by then the partnership of acquests regime. In case the parties preferred a different regime, they could still choose it by themselves, by means of celebrating a pre-nuptial convention: then they could either choose any of the legally typified assets regimes, or freely stipulate on the matter, within the limits of the law. The chosen regime became effective after marriage, unless it was an invalid, a non-effective, or a forfeited pre-nuptial convention, being in such case also applicable the supplementary regime. In any circumstance, that was an irreversible situation once it came into effect, as mentioned before: the principle of immutability of pre-nuptial conventions and of legal assets regime was then binding.

In the terms of the new Civil Code, those who intend to get married still have the possibility to choose by themselves the assets regime applicable by celebrating a pre-nuptial convention, or by default, in case they do not celebrate any convention before the wedding. In the last eventuality, and just like before, it becomes applicable the supplementary legal assets regime, yet with an important difference: that regime is now the participation in acquests regime (participação nos adquiridos, in Portuguese, participation aux acquêts, in French). Besides, and here comes another significant dissimilarity, the above-mentioned principle of immutability, concerning both pre-nuptial conventions and legal assets regimes, is not valid anymore. We now have matrimonial conventions, which can either take place before, or after the wedding: we have pre-nuptial and post-nuptial conventions. Unlike before, spouses may now, by celebrating a post-nuptial convention: 1- Modify the pre-nuptial convention; 2- Celebrate, for the first time, a matrimonial convention, namely with the intention of replacing the supplementary legal assets regime in force; 3- Alter a previous post-nuptial convention (article 1578).

5. Matrimonial assets regimes

Matrimonial assets regime is the set of rules and regulations that define the property on the couple’s assets, that is to say, its partition among the common possessions, the husband’s possessions and the wife’s possessions (in this sense, Francisco Pereira Coelho and Guilherme de Oliveira[3]).

Before the MCC came into force, there were three legal assets regimes: partnership of acquests, general partnership and separation. The former was, as already mentioned, the supplementary legal regime, the one applicable in case there was no pre-nuptial convention, or in case that convention existed but had become invalid, non-effective or forfeited [article 1717 of the Portuguese Civil Code (PCC)].

Presently, there are four legal assets regimes: other than the three previously indicated, there is now the denominated participation in acquests regime, which, in addition, has become the supplementary legal regime (article 1579).

Here is a very brief description of each of the legal assets regimes:

• General partnership or communion (article 1609) – The possessions in common include all the spouses’ assets, present and future, as long as they are not excluded by the law;

• Separation (article 1601) – Each spouse maintains the ownership and fruition of all his/her present and future assets, including to freely have the use of them, except when the law provides otherwise;

• Partnership or communion of acquests (article 1603) – Each spouse maintains the ownership and fruition of the assets that belonged to him/her before the wedding, or before the eventual adoption, later on, of the stated regime while married (personal assets); each spouse becomes holder in communion with the other spouse of the assets acquired by any of them while the regime lasts, as long as not excluded by the law (common assets);

• Participation in acquests (article 1582) – According to the model that has been adopted in Macao, each spouse has the ownership and fruition not only of the assets that belonged to him/her before the wedding, or before the eventual adoption, later on, of the stated regime while married, but also of the assets subsequently acquired, including to freely have the use of them, except when the law provides otherwise. When this regime ceases, namely because marriage has come to an end, or due to the fact that the spouses have celebrated a post-nuptial convention, there is a mechanism that has been established to somehow compensate the spouse who, while the regime lasted, had a minor patrimonial growth: the law gives him/her a right known as “credit in the participation” in order to attain the equality in terms of value of the patrimonial growths originated in marriage.

We may roughly say that this new supplementary legal regime is a mixture between two legal assets regimes: separation and partnership of acquests. While the regime lasts, it works as if it were a separation regime, conferring the inherent freedom and flexibility regarding the assets administration and power of disposition; when the regime ceases (by dissolution or annulment of the marriage, by declared absence, by its modification through the celebration of a post-nuptial convention, or by means of a judicial separation of property) or, if better, is in itself dissolved, the law intends to give each of the spouses, or ex-spouses, a patrimonial value similar to what he or she would have gained in case they had been married under the regime of partnership of acquests. The idea that lies behind this new regime is to reconcile and protect two different kinds of interests: formerly, individual initiative, economic freedom and autonomy, therefore the fluidity of juridical commerce in general, by assuring that the goods will circulate more freely; later on, solidarity in marriage, and therefore protection of family interests, through the conferment of the above-mentioned credit in the participation – after all, marriage is sharing, participating and contributing for a life in common, being just fair to compensate the spouse who, at the end, appears as the most sacrificed, weaker or simply less fortunate, by equilibrating both spouses’ possessions and, in this manner, granting each one a way of living according to their family standards.

Once again, the new supplementary legal regime tried to give a more efficient answer to the specific needs of Macao population which, apart from other relevant considerations, is characterized by a great and constant mobility, in particular between the territory and Mainland China. Moreover, the proximity with Hong Kong, influenced by the British Common Law, also advised, to a certain extent, more independence of the spouses in their patrimonial or non-personal relationships. In brief, Macao now combines two different assets regimes: the previously model in force of communion of acquests, compelling in PRC as well as in Portugal, and the separation regime from Hong Kong.

Finally, I would like to add that the supplementary legal regime presently in force has been inspired in foreign models, according to which there is a tendency to introduce communitarian ideas in separation regimes, in particular in the French participation aux acquêts. The regime is, for instance, known in some South American countries, in Sweden and Spain, “(…) being also, basically, the supplementary regime of the German Law”. Comparative Law becomes thus a non-dispensable device in what the development of a law system is concerned, namely through the relevant lawmaking process.

III. Conclusion

One of the initial notions that we learn when we have our first contact with family law is that it is an institutional law – in the sense that the lawmaker extracts it from the family where it lives and is continuously being produced – as well as very sensitive to any change in the environment, that is very prone to develop modifications, namely in accordance with the social, economic, political or even religious progress.

Therefore, the debate and interchange of different points of view is, in this particular legal field, absolutely necessary for a sane evolution of the subject. At this point, I cannot but vividly salute any serious effort in promoting such outcome.

ABSTRACT

Title:

Basics on Macanese Matrimonial Finances

Presenter’s contact information:

Name – Paula Nunes Correia

Title – Prof.

Position – Assistant Professor

University affiliation – Faculty of Law, University of Macau (China)

Post address – University of Macau, Faculty of Law, Ed. Stanley Ho, 4th floor, Taipa, Macau (China)

Telephone – +853.83974771

Fax – +853.83974776

Email – pcorreia@umac.mo

Mini-bio – LLM and LLB degrees, presently working on her PhD candidacy. Lives in Macao and teaches at the University of Macau since 1999. She’s been the Coordinator of the Bachelor of Law in Portuguese Language Program since 2000. Her research interests are mainly centered on civil law subjects, preferably on family law, mostly in a comparative perspective. She has published various articles on law in diverse countries (Brazil, Belgium, China, Serbia, and U.S.A.).

Abstract:

Following a brief introduction, the paper is centered on the purpose to present some general principles and issues regarding patrimonial relationships between spouses, in the context of the Macanese law. To fulfill such intention, the Author brings in the duties emerging from marriage, naturally focusing on their patrimonial aspects. A brief notice on the general principles governing the administration of the couple’s assets follows, as well as on those regulating the spouses’ debts, for which they can either be jointly or exclusively liable, depending on the type of debt incurred. Finally the Author introduces the subject on the matrimonial assets regimes, which is preceded by a comment on matrimonial conventions, both ante-nuptial and post-nuptial conventions. With regard to the matrimonial assets regimes, a notice is given on the supplementary regime, or participation in acquests regime, as well as on the remaining legally typified regimes: communion in acquests, general partnership and separation regime.

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[1] The Macanese Civil Code, just like its predecessor the Portuguese Civil Code, is also inspired in the German BGB.

[2] From now on, all articles cited, if not referred otherwise, belong to the Civil Code of Macao.

[3] Curso de Direito da Família, volume I, Introdução ao Direito Matrimonial, 3ª edição, 2003, Coimbra Editora, page 517

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