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)].