Protection of heritage in the family crisis: separation and divorce.
In the family crisis there are many aspects of the assets.
It is very important to have a clear idea of how to protect the preservation of assets, the house that is often registered only for a spouse, the movable and immovable property, the savings also in order to guarantee the right protection for the children.
Children have the right to be supported by both parents as stated in the Italian Constitution and Article 147 of the Civil Code until they reach their economic independence which does not coincide with reaching the age of majority.
With separation and divorce you can have important consequences on the assets that can be different also in consequence of the regime chosen at the time of marriage:
Spouses, at the time of marriage celebration or even later, can opt for the communion of goods or for separation. In the first case, the civil code in art. 177 establishes that the real right of all the goods purchased even separately after the choice of this property regime belongs to both spouses. The fruits of the property of each member of the couple, the proceeds of the activities, the companies managed by both and formed after the marriage or after the choice of the patrimonial regime are also part of the communion.
With the legal separation, the regime lapses, every asset can be distributed equally between the spouses, including liabilities or debts such as a mortgage or distributed in different proportions depending on the agreements between the parties.
The indivisible assets, in case of lack of agreement, by their very nature can be sold and the proceeds assigned in equal parts to the former spouses.
The goods received as an inheritance or in a donation do not fall into the communion, as well as the capital eventually received for damages.
Many, at the time of marriage or later, choose the goods separation. This property regime allows you to remain the owner of your assets, as well as the enjoyment of the same. In the event of a family crisis, this option allows you to reduce disputes because the assets are already divided between the spouses.
In the event of a conjugal crisis, it is advisable to consult a professional who can make an assessment of the assets and the assets possible consequences in case of separation and divorce. Beyond the existence of communion or separation of goods that indirectly affect the transfer of assets to children, there are alternative options that can be covered.
Many former spouses instead of opting for the transfer of real estate (such as the house) or other real rights (such as housing) to one or the other, make them directly to their children.
This request for transfer to the heirs is written in the minutes of the separation or divorce hearing. The spouses can also decide when to actually effect this transfer and this is very useful in the case of minor children.
When they come into play securities, liquidity or even the ownership of a company, there are other aspects to consider.
The transfer of securities, or financial instruments, must be validated by a public deed before a notary. This was clarified by a recent sentence of the Supreme Court which confirmed the nullity of the act if done in a different way. The only exception is provided in the case of "modest value", a limit not specified by law but which allows direct donations without the ratification of a public deed. When it comes to transferring a business, one can resort to donation, a consensual contract between the two parties that determines the will to transfer the property in question when the donor is still alive, or to the so-called family pact. In the first case, the entrepreneur can pass the ownership of the company to his son but, at the time of the actual succession (i.e. the death of the donor) the value of the company must be added to the other assets possibly included in the inheritance the entire amount of the succession and allow all legitimate heirs to exercise their rights on the capital. The alternative can be represented by the family pact, a specific contract to which the other possible members of the family called to inherit must also participate, therefore also the ex-spouse, as well as nephews, brothers and other close relatives. In the contract stipulated as a family pact, the settlor (i.e. the person who must transfer the company) proposes to compensate with other assets the value of the company that is not divided among the heirs. With the family pact, what may seem like a real succession in life is realized since the asset in question leaves the inheritance axis and the other members of the family will no longer be able to claim rights over that property.
If instead there are cash to be transferred, it is advisable to follow a traced procedure, in compliance with the anti-money laundering legislation which establishes that, if the sum is higher than the EUR 2.999, means that can be identified ex-post must be used.
Some cases of jurisprudence also suggest preparing an exchange of certified e-mail (or classic postal mail with return receipt, in which they are certain - that is - dates), in which the donor informs the child that he has made the donation specifying the half carried out and the amount; once the sum has been received, the child responds by confirming the receipt of the same sum donated.
When the ownership of a property, however, is not yet completed and that is when - for example - you have yet to finish paying the house, conflicts may arise related to the ownership of the debt or who must continue to pay.
The mortgage is an independent contract with respect to family mattersThis means that the condition of separation or divorce does not affect the credit of the bank that will continue to be considered creditor of those who have entered into the contract, one only or both if the loan is jointly held.
It should be borne in mind that in the event of a family crisis it does not matter who actually stays in the house on which a mortgage is being solved: the contractual conditions established in the beginning remain the valid ones.
To change the initial conditions of the loan, it could be decided for a subrogation of the loan, and in the transition to another credit institution to have only one person as owner instead of two, for a loan transfer, for a takeover of the joint mortgage, electing only one of the two contractors as the holder of the loan and therefore owner of the property or
You can continue with the joint payment by agreeing the modalities with the possible help of the judge.
Protecting children, even from an economic point of view, in the marriage crisis is very important. Even when a family ends because the spouses decide to separate or come to a divorce, there are methods to protect the family assets and make the generational transition easier and safer.
Protecting heritage is important, especially within the family world, where the riches that represent the fruit of a lifetime's work are concentrated.
Currently the term "family" recalls not only and exclusively the traditional model based on marriage (civil / religious), but an increasingly large number of de facto unions and extended families.
In this world, the regulation of patrimonial relationships assumes considerable importance both when the nucleus is born, and in the physiological phase of the couple relationship but, above all, in the pathological moment.
In the context of family law, following the legislative reform of the 1975, over the years there has been an increasingly growing contractuality.
The norm that constitutes the source of private negotiation autonomy in conjugal relations is Art. 144 of the Civil Code, which recognizes the spouses, among the rights and duties arising from marriage, to agree among themselves the address of family life.
By virtue of this rule, the spouses can stipulate both typical dispositive acts such as the sale and donation and atypical contracts pursuant to Art. 1322 of the Civil Code, justified by the so-called "Family cause" and, in any case, from interests worthy of protection according to our legal system. Spouses are now free to conclude agreements and understandings, to enter into agreements and contracts, both in the physiological moment of family life and in the pathological moment.
They are an expression of the spouses' autonomous negotiation:
- during marriage, the marriage conventions, which consist of agreements of patrimonial content that the spouses may at any time stipulate, either to derogate from the legal property regime of the communion of assets, or to segregate a part of the assets themselves in the equity fund;
- in the pathological phase of the relationship, the agreements of consensual separation and the joint divorce petition, as well as the agreements of a patrimonial nature concluded on the occasion of personal separation and divorce as the so-called Latin agreements.
The private negotiating autonomy then assumes its maximum application in the factual family.
In this context of negotiating autonomy, the instrument of the Trust, a programmatic unilateral legal transaction which, thanks to its recognized characteristics, is able to achieve the increasingly complex and varied protection purposes of family realities.
The Trust can also be useful in the pathological phase of the couple relationship
The topics that are the main subject of discussion between spouses in the pathological phase of the marital relationship concern the relative regulation:
- a) to the conjugal house;
- b) to the maintenance of the economically weaker spouse;
- c) custody of the children and their maintenance; d) to the family heritage.
In the consensual separation and in the joint divorce, which represent the most widespread forms of separation and termination of the civil effects of marriage between spouses, it is peacefully admitted, both in doctrine and in jurisprudence, precisely because it expresses the spouses' autonomous negotiation, in pathological moment of the relationship, the possibility to stipulate translating shops.
The Courts, in acknowledging the agreements between the parents, if not contrary to the pre-eminent interests of the children, confirm the recognition of the ever wider autonomy of negotiation in the family.
Rules of substantive and procedural law attach importance to the agreement reached by spouses both in the consensual separation and in the joint divorce, without setting limits to its content, with the exception of the undeserved interest.
The Trust allows the protection of family assets in order to guarantee the satisfaction of the needs of the family and avoid that, after separation or divorce, one or both spouses dispose of family assets, subtracting them from the needs of their children.
The peculiar natural effect of this legal instrument, segregation, has the advantage, above all, especially when the asset is entrusted to a third Trustee, to ensure a sort of parity between spouses, who are thus both deprived of the availability of the asset disputed and have the guarantee that the management of the assets is carried out for the benefit of the children, avoiding that the personal affairs of the separated / divorced spouses influence the destination of the segregated resources.
The use of the Trust in the procedures for separation by consensus and for joint divorce has found full recognition in the Italian jurisprudence.
In causes of separation and divorce, one of the fundamental problems of the family pathology that can arise following the legal separation of the couple can concern the fulfillment of the obligations that arise from the situation of separation and divorce, both those that each spouse voluntarily assumes by signing the 'separation / divorce agreement, and those that are the consequence of a court order contained in the separation / divorce provision, also in this case the trust can be useful: the assets bound in trusts are indifferent to any economic affair that may involve the debtor spouse (Trustworthy) following the establishment of the Trust, thus guaranteeing the Beneficiaries not to be subjected to the trust on the trust property of any creditors of the Settlor. By establishing a mandatory relationship between the Trustee and the creditor spouse, the possibility of a default is canceled and therefore the possibility that the creditor spouse has to resort to forced execution. The Trust then determines the submission of the restriction of destination only to the capital resources necessary to meet the maintenance obligation.
The Trust becomes a very important tool in the de facto family because it can more fully guarantee the correct management of property relations, the fair balance of interests and satisfies all the needs and requirements of cohabitants, even those that may have arisen, both in constant relationship, and in the event of the interruption of cohabitation.
The regulation of relations between cohabitants finds advantage in the segregation of assets, as a natural effect of the trust.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.