Efectos de Liquidar una Sociedad Conyugal en un Matrimonio Ineficiente

Abstract

Inefficient marriage results from the intentional breach of marital obligations, especially property obligations. Thus, when the spouses assume different degrees of commitment, the economic burdens of the marriage become disproportionate and generate a contractual imbalance. This situation becomes important when the conjugal society is liquidated, since the current legislation in this matter imposes an equal division of the property, regardless of the irregularities that occur in an inefficient marriage. The foregoing is contradictory if it is observed that the breach of obligations is a ground for divorce sanction. Thus, the absence of a special regulation applicable to the phenomenon of inefficient marriage reveals an axiological gap in the liquidation act of the conjugal society, when it imposes its normative force on two opposing realities. In one of them, the equal distribution of the property is justified because both spouses responded to their obligation burdens in an equivalent manner; but in the other, it is unjustified because the patrimonial burdens are disproportionate. It follows, then, that the law awards the right to property by the mere fact of holding the status of spouse, disregarding the type of behavior that he assumed during the marriage. Consequently, this situation infringes the economic rights and interests of the person who contributed the assets that the law presumes acquired in common. The present research determines the rules of efficiency and equity in the act of liquidation of the Conjugal Society in an inefficient marriage through the theories of economic analysis of law and contractualistas.