Regimul separaţiei de bunuri cu clauză de lichidare potrivit participării la achiziţii

Rezumat

By choosing the matrimonial property regime of separation of property, the future spouses or, as the case may be, the spouses, have the possibility to determine, by their matrimonial property agreement, that the liquidation of this regime takes place according to the mechanism of participation in acquisitions. Pursuant to such clause, according to Article 360 para. (2) of the Civil Code, the liquidation of the regime of separation of property takes place according to the mass of property acquired by each of the spouses, on the basis of which the participation claim is established; in the absence of a stipulation to the contrary, the participation claim represents half of the difference in value between the two net acquisition masses and is owed by the spouse whose acquisition mass is greater.
The advantage of such an option would be, in theory at least, that it succeeds in preserving the autonomy of the spouses, which is specific to the regime of separation, without encouraging "apathy" towards the patrimonial interests of the other, since it leaves open, for each of them, the expectation of association to the benefits of the spouse; it also prevents the inconveniences of partition in kind, because it operates in the form of an accounting system.
Essentially (and elementary), the determination of the participation claim involves three steps: determination of each spouse's net acquisition mass; determination of the difference in value between the two net acquisition masses; determination of the participation claim. The first of these is the most complex and basically decides the amount of the participation claim as well as its beneficiary; the subsequent steps are nothing more than arithmetic calculations operating on values derived from the first liquidation phase.
We propose to draw attention to the factors without which the participation claim algorithm is just a generic equation, namely the composition of each spouse's net acquisition mass and the valuation of the assets contained in those masses.
In our opinion, the quasi absolute discretion of the law in relation to the elements of fundamental importance on which the determination of the participation claim depends makes it extremely risky to assume such a plan for the liquidation of the matrimonial regime of separation of property, even in the context of a thoroughly detailed matrimonial property agreement.