La legitimación de los cónyuges para disponer de los bienes comunes bajo régimen de sociedad de gananciales en el Derecho Peruanoestudio comparado con el Derecho español

Abstract

This doctoral thesis approaches the study of the disposition of the common property under the regime of community of property in Peruvian and Spanish Law. In Family Law, the organization of economic and property relations between spouses, and vis-à-vis third parties, is an issue with a great impact, and of a remarkable complexity, especially when spouses are subject to a community-property regime, whose treatment in the above-mentioned legal systems shows remarkable similarities, but also noteworthy legal differences. In the framework of that matrimonial property regime, Peruvian Law has been experimenting in recent decades various problems related to individual disposition of common property. That could be because of the current regulation of cases in which a single spouse is empowered to dispose of the common property is not sufficiently clear or because it has been misinterpreted. This situation is aggravated by the need to provide protection to the third parties involved, and by the omissions and obscurities of the law, to which must be added a divided jurisprudential doctrine. Peruvian Law does not contain an article equivalent to Article 1.322 of the Spanish Civil Code, which resolves the issue in common Spanish Law by redirecting the legal sanction of consent problems to invalidity. Thus, the protection of the spouse, who has not given her consent, is channelled in accordance with Article 1.322 of the Code, through the instrument of relative nullity when they are acts of disposition for a valuable consideration, and through the absolute nullity, in the case of acts of free of charge. There is no explicit rule in Peruvian Law, but it does not seem conceivable that there is no legal sanction in cases of contravention of the joint disposition rule for common property, due to the need to protect the spouse affected, the family interest and third parties unfairly involved. The question, then, is to determine what is that sanction, what is its legal basis and what are its consequences. There is also a set of registration factors that exacerbate the problem of the irregular disposition of common property in Peruvian Law. Registration publicity of the community of property is limited to the case of property regime replacement, so that the initial choice does not have access to Public Records. The same thing happens in the Civil Registry, with the aggravating circumstance that after marriage the marital status of the spouses is not usually modified in the identity card, creating specific problems in relation to the individual disposition of common property, because one of the spouses may unilaterally dispose of such property in cases requiring joint disposition, registering the transfer using an apparent bachelor status. The problem is thus institutionalized. These problems also affect third parties, who for the defence of their interests will resort to legal principles that generate at the judicial level a confrontation with regard to the interests to be protected: the best interest of the family, given the possible damage to the common property, or the legal certainty of third parties who hired with a spouse protected by the publicity of the Public Records? In view of the current state of affairs, it should be noted that there is little literature on this subject in Peruvian Law, and the treatment is, in general terms, descriptive, and sometimes superficial. The jurisprudential doctrine doesn’t help much either, because it responds to the same parameters. For that reason, the research includes a study of Spanish Law on the subject matter of analysis, since this order presents a greater normative, doctrinal and jurisprudential development, with a more detailed and rigorous consideration of the issues involved, including possible solutions. The purpose of this study of Spanish Law is not merely comparative, since it has the aim of proposing an improvement of the legal formulation, and the interpretation and application of Peruvian Law with contributions from Spanish Law. This research focuses on an analysis of the rules governing the management of the spouses' common property, in two legal systems: Peruvian and common Spanish, formulated at two different times, being Spanish Law the one which, to a certain extent, marks a technical evolution when it faces that problem. This study aims, firstly, to enrich the analysis of Peruvian Law with materials from common Spanish Law. This comparative study also seeks to produce beneficial results for the two legal systems involved and for the determination of technical improvements in the regulation of this matter. The work is structured in five chapters and in all of them there is a convenient comparative reference to common Spanish Law. The first chapter aims to describe the current legal configuration of the Peruvian community of property, with a brief reference to its historical-legislative background. The second chapter presents the property whichs constitutes the asset of the community of property according to the rules of Peruvian Law. The third chapter is devoted to the study of the rules applicable to the management of the property in the Peruvian community of property, covering the different application areas, such as administration, disposition and contracting. The fourth chapter focuses on the study of the legitimacy of spouses in acts of disposal of the common property, using for this a general typology that structures the matter in joint legitimation and individual legitimation. In addition, I formulate the problem of the sanction that would correspond to acts of irregular disposition of common property. Finally, in the fifth chapter, I make a proposal for interpretation on the sanction to be applied in cases of individual disposition of common property not authorized by law. To this end, I also study the categories of invalidity and ineffectiveness of the legal act are briefly developed. The sanctions applicable in Spanish Law to acts of disposition that contravene the joint management rule. I propose the thesis of "anomalous individual legitimation" for cases of irregular disposition of a common property. With this thesis, these cases will be solved as cases of ineffectiveness and ratification, even if they are cases not legitimated by the rule.