Vacío legal en la administración de la sociedad conyugal entre insolventes.

Abstract

The conjugal partnership or property community is a legal concept that arises from the celebration of marriage or a de facto union, and therefore, it cannot be established beforehand nor remain in effect once the union has ended. Consequently, this civil institution, which creates a property regime despite originating from a contract initially unrelated to property matters, must be governed in accordance with the Civil Code. Since the law is dynamic, marriage, and specifically the conjugal partnership, can be involved in various contexts. One such case arises when individuals declared insolvent by judicial ruling, despite being limited in their ability to enter contracts for property purposes, are still capable of marrying and, consequently, participating in a legal framework with property-related objectives, such as the conjugal partnership. Doctrinal approaches and the study of legislation are essential to analyze the functioning of this institution as a result of the union of two insolvent individuals who do not establish a regime other than the conjugal partnership, in order to determine its proper administration. Therefore, when the insolvency of both spouses is verified, a solution would be to include a clause in the marriage contract or allow either party or a creditor to request the appointment of a trustee to act as the ordinary administrator of the conjugal partnership. This would ensure that the spouses can only manage their assets intuitu personae when it concerns their essential subsistence.