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 or even thereafter, can opt for community property or separation . In the first case, Article 177 of the Civil Code establishes that the real right to all property acquired, even separately, after the choice of this matrimonial property regime belongs to both spouses . Community property also includes the fruits of the assets of each member of the couple, the proceeds of business activities, and businesses managed by both spouses and established after the marriage or after the choice of this matrimonial property regime.

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 people, at the time of marriage or subsequently, choose separation of property. This matrimonial property regime allows a spouse to retain ownership of their assets, as well as their enjoyment of them. In the event of a family crisis, this option can reduce disputes because the assets are already divided between the spouses.

In the event of marital crisis, it is advisable to consult a professional who can assess the assets and the potential consequences of separation and divorce . Beyond the existence of joint or separate property, which indirectly impacts the transfer of assets to the children, there are alternative options available.

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 securities, liquidity or even ownership of a business come into play, 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, however, there is liquid money to be transferred, it is advisable to follow a defined procedure , in compliance with anti-money laundering legislation which establishes that, if the sum is greater than 2.999 euros, 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.

However, when ownership of a property is not yet complete, that is, for example, when the house payment has yet to be finished, conflicts may arise regarding ownership of the debt, i.e. who must continue to pay.

The mortgage is a contract independent of family matters , which means that separation or divorce does not affect the bank's credit, which will continue to be considered a creditor of the person who signed the contract, either one or both if the mortgage 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 the marriage, marital agreements , which consist of agreements regarding property that the spouses can stipulate at any time, either to derogate from the legal property regime of community of property, or to segregate a part of the assets themselves in the patrimonial fund;

– in the pathological phase of the relationship, consensual separation agreements and joint divorce applications, as well as patrimonial agreements concluded on the occasion of personal separation and divorce such as the so-called side agreements.

Private contractual autonomy then assumes its maximum application in the de facto family.

The Trust instrument fits well into this context of contractual autonomy , a unilateral programmatic legal transaction which, due to its recognised characteristics, is capable of achieving the increasingly complex and varied protection objectives 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:

1. a) to the conjugal house;
2. b) to the maintenance of the economically weaker spouse;
3. 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 consensual separation and joint divorce proceedings has found full recognition in Italian jurisprudence.

In separation and divorce cases, one of the fundamental family problems that can arise following the legal separation of a couple may concern the fulfillment of obligations arising from the separation and divorce, both those that each spouse voluntarily assumes by signing the separation/divorce agreement, and those resulting from a court order contained in the separation/divorce decree. In this case, too, a trust can be useful: the assets encumbered by the trust are unaffected by any financial events that may affect the debtor spouse (Settlor of the Trust) after the trust is established, thus ensuring that the beneficiaries are not subject to the competition for the trust assets by any creditors of the Settlor . By establishing a binding relationship between the Trustee and the creditor spouse, the possibility of non-compliance is eliminated, and therefore the possibility that the creditor spouse will have to resort to forced execution. The Trust then determines that the destination constraint will be subject only to the patrimonial 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.