Libro Primero · Título II · Capítulo I Párrafo V. Régimen económico del matrimonio

The economic regime of the marriage is governed by the marriage capitulations executed by the contracting parties before or in the act of the celebration of the marriage.

Marriage capitulations are the agreements executed by the parties entering into marriage to establish and regulate the economic regime of the marriage.

Marital capitulations are mandatory in the following cases:

1º.When either of the prospective spouses has property whose value reaches two thousand quetzales;

2º.If either of the prospective spouses practices a profession, art or trade that produces for him or her income or emolument exceeding two hundred quetzales per month;

3º.If either of them has under administration property of minors or incapacitated persons who are under his or her parental authority, guardianship or custody; and

4º.If the woman is Guatemalan and the man is a foreigner or naturalized Guatemalan.

Marriage settlements shall be set forth in a public deed or in a record drawn up before the public official who is to authorize the marriage. The transcript of the deed or the certification of the record shall be entered in the Civil Register, once the marriage has taken place; and also in the Property Register, if immovable property or real rights therein are affected.

The clauses of the agreement that contravene the provisions of the law, or restrict the rights and obligations of the spouses as between themselves or with respect to the children, are void and shall be deemed unwritten.

The marital agreements shall comprise:

1.The detailed designation of the property that each of the spouses has upon contracting marriage;

2.Declaration of the amount of the debts of each one; and

3.Express declaration by the contracting parties as to whether they adopt the regime of absolute community, that of absolute separation, or that of community of gains; or with the modalities and conditions to which they wish to subject it.

Under the regime of absolute community, all property contributed to the marriage by the contracting parties or acquired during the same belongs to the conjugal patrimony and shall be divided in half upon dissolution of the marriage.

Under the regime of absolute separation each spouse retains the ownership and administration of the property belonging to him or her and shall be the exclusive owner of the fruits, products and accessions thereof.

The wages, salaries, emoluments and gains obtained for personal services or in the exercise of commerce or industry shall also be the separate property of each of the spouses.

Under the community of gains regime, the husband and wife retain ownership of the property they held upon contracting marriage and of that which they acquire during it, by gratuitous title or with the value of either; but upon dissolution of the conjugal estate they shall make their own in halves the following property:

1º.The fruits of the separate property of each of the spouses, deducting the expenses of production, repair, conservation and fiscal and municipal charges on the respective property;

2º.Those purchased or exchanged with such fruits, even if the acquisition is made in the name of only one of the spouses; and

3º.Those acquired by each spouse with his or her work, employment, profession or industry.

The spouses have the unwaivable right to alter the marriage articles and to adopt another economic regime of the conjugal patrimony, during the marriage.

The modification of the marriage articles shall be made by means of public deed that shall be registered in the respective registries, and shall prejudice a third party only from the date of registration.

In the absence of marriage settlements regarding the property, the marriage shall be deemed contracted under the community of acquests regime.

Notwithstanding the provisions of the preceding articles, property acquired by inheritance, donation or other gratuitous title, and indemnities for accidents or for life, personal injury or sickness insurance, less the premiums paid during the community, are the separate property of each spouse.

Absolute separation of property does not in any case exempt the spouses from the common obligation to sustain the expenses of the household, the nourishment and education of the children and the other burdens of the marriage.

The furnishings of the conjugal home belong exclusively to the wife, with the sole exception of objects for the husband's personal use.

The property regime between foreign spouses of the same nationality is determined, in the absence of marital capitulations, by the personal law common to them at the time of the celebration of the marriage; and if they are of different nationality, by that of the place where the spouses established the first conjugal domicile.

The change of nationality of the spouses or of one of them shall have no influence on the property regime.

Under the regime of absolute community or the regime of community of gananciales, both spouses shall administer the conjugal patrimony, whether jointly or separately. Each spouse or cohabitant has free disposition of the property registered in their name in the public registries, without prejudice to being answerable to the other for any disposition made of the common property.

They may also request the judge to order the cessation of the administration by the other spouse, as well as to modify the economic regime of the marriage to that of separation of property, when the other spouse engages in negligence, incapacity or imprudence in the administration of the conjugal patrimony, jeopardizing the patrimony or the adequate provision of maintenance for the family.

The common property shall be liable for obligations contracted by either spouse for the support of the family, and if such property should be insufficient, the separate property of each of them.

Civil liability for unlawful acts of one spouse does not bind the other spouse in his or her own property nor in his or her share of the common property.

Debts prior to marriage shall be paid with the separate property of the person who contracted them, even when the marriage is governed by the community regime.

Expenses caused by illnesses, as well as those arising from funerals and mourning as a consequence of the death of a spouse or of the children of both, are deemed common debts of the marriage, for which the separate property of the spouses is liable in the event that the common property is insufficient.

The community of property terminates:

1º.By dissolution of the marriage;

2º.By separation of property; and

3º.By one of the spouses being convicted in a final judicial judgment for a crime committed against the other.

Upon termination of the community of property, its liquidation shall proceed immediately. 21 22 If the economic regime is that of partial community, the property remaining after paying the charges and obligations of the community and after restoring the own property of each spouse, is community-gain property that shall correspond by halves, to husband and wife or to their respective heirs.

The unjustified abandonment of the conjugal home by one of the spouses causes the effects of the community of property to cease for him, from the day of abandonment, insofar as they favor him.

In case of de facto separation, the guilty spouse shall have no right to community property during the time of the separation.

When the nullity of the marriage is declared, the spouse who acted in bad faith shall have no share in the profits.

If both acted in bad faith, the conduct of both shall be offset.