Relationships between couples are built on the basis of contracts, formal or informal, in which there is mutual benefit, or at least there should be in the beginning, so that of their own free will two beings decide to share their lives.
The agreement is a necessary act to avoid encumbrances, damages, resolve or mitigate objections and achieve the most satisfactory solution between the parties. That is why the Family Code advocates in its content the right to consent.
According to the legal text, it is possible to agree on the order of children’s surnames, their religious affiliation, the delegation of part of the exercise of parental rights, the organization of coexistence between the members of the affective de facto union, the resolution of family conflicts outside the judicial space… but perhaps among the most important changes, and also required, is the inclusion of new ways of negotiating assets before or during marriage.
Article 29 of the current Family Code states that the economic regime of marriage is an exclusively property community that exists from the moment of its official confirmation or from the date on which it is recognized by the competent court. This means that in the event of the dissolution of the union, the resources acquired as an official couple must be shared.
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The regulations responded at the time to the fact that in 1975 women’s participation in paid work was insignificant and the value of housework was not recognized as something calculable and contributory (in the new code this idea appears and monetary compensation is required). Back then, the matrimonial community system protected the woman and implied mandatory support for the members after the couple’s separation.
According to Judge Yeniseis Palacio Durruthy, President of the Family Section of the Guantanamo Municipal Court, modernity and the Cuban social environment require immediate changes to the 1975 Family Code.
“We found many cases where what was regulated did not meet the reality of the litigants. It may happen that an international collaborator, married and on mission, has left his partner in the care of the home, and the latter stones the common heritage.
“Then, having been brought before a jury to demand justice, as the only regime existing in law was that of conjugal union, not only what was obtained during the mission was to be divided, but even what was brought to the end of this provision of services,” says Palacio Durruti.
“The opposite can also happen – he explains -: a citizen who has spent years outside the country without directly taking care of his family or home, upon his return to the archipelago refuses to share or compensate his wife for the time he devoted of care for the commons. For this case and for the previous one, the new bill offers fair solutions».
The draft of the Family Code in version 25, which will be submitted for a referendum on September 25, proposes to break with the legal limitation that perceives the validity of the imperative regime as the only possible one and includes the possibility of negotiation before the formalization of the marriage or during the marriage life and before a notary decide whether they will live in a conjugal community (as it existed before), with separate property or choose a mixed economic regime.
Dairon Lorenzo Salazar Caramanzana, a criminal law specialist at the Guantanamo Bay Collective Law Offices, explains the value of this timely decision.
“The recognition of the multiplicity of the family organization within marriage means a qualitative leap, as it strengthens the will of people to choose the option they consider most convenient, and only in the absence of this decision does the law establish the marital community as an additional regime,” he guarantees.
Prenuptial agreements include not only property matters but also personal or non-marital matters and are not mandatory, but a right that may or may not be exercised at will.
Salazar Caramanzana explains that it materializes through a public act, which is not the same as the formalization of marriage. The population must be very well informed about this.
The pact defines what the economic regime will be, what assets they will claim as their own and which are shared, among other issues. This offers legal certainty, avoids future surprises and eases the painful process of separation or divorce.
Another important element is the possibility of changing the agreed regime as many times as the spouses see fit, and the list of own and joint assets can even be expanded, in accordance with the reality of families today. Likewise, those who feel that the agreement affects them are given the right to take their disagreements to court.
There are other benefits in the text: preferential distribution of common property in favor of the spouse with disabilities, necessary for the education or development of the daughters and sons and acquired by the merits of one of the spouses; and included is the temporary assignment of use and enjoyment of goods and rights in the event of the death of one of the members of the marriage.
The surviving spouse and minor children, or who are in a state of disability, can continue to use them until the operations of division of the inheritance are approved.
In addition, Chapter V of the new Family Code adds other issues concerning the rights of citizens: the reinstatement or reimbursement of those who have contributed their assets for expenses or payments charged to the conjugal community, the responsibility to claim the joint assets of pay their own obligations to the detriment of the common property, the obligation to inform about the economic status of the spouses and the nullity of unilaterally accepted acts.
Couples who have not formalized the marriage or recognized the de facto union before the notary in order to obtain legal support are also protected.
The text provides protection in case of termination of the union at the will of the parties or in case of death of one of the members. In both cases, the judicial recognition of the union takes place before the court, and based on the evidence presented, the existence of the union will be recognized and two ways of defense will be offered.
If people are alive, the common property acquired during the union can be liquidated, and if one of the members of the couple has died, the survivor will have inheritance rights. Either way, the de facto union is protected.
What it’s all about, as explained on Grandma Dr. Leonardo Pérez Gallardo, President of the Cuban Society of Civil and Family Law, of the Union of Lawyers of Cuba, is to promote the freedom of spouses to act in accordance with their life project, to allow them to decide the content of the inheritance relationship, adding rights, respecting wills, and in the absence of such it will be up to the court to decide what is most just, but the right to decide will exist for every citizen.
- Regime of property separation: Each of the spouses retains free management and disposal of their own property, acquired before or after the conclusion of the marriage.
- Mixed Regime: Combines both the marital community and the separate regime regardless of the nature of the assets and rights. The couple chooses what they want to be jointly owned and what to keep as their own. (Taken from grandma)