Evoking the institution of marriage implies a first and practically involuntary association with issues such as the community of affections, love, spirituality, passionate feelings and a whole series of emotions that remain on the plane of subjectivity. However, marriage has an economic or patrimonial component as important as the personal content and which is responsible for regulating the relationships of the spouses with each other and with third parties regarding assets, rights and obligations. The so-called economic regime of marriage is not always attended by the couple in the wedding preparations. Dragged by the paraphernalia that tends to accompany the formalization of the marriage, they end up disregarding this matter until they are surprised, almost always, by conflicts related to the subject. Shakespeare already said it, who seemed to be very knowledgeable in matters of love: “Our world is not always lasting, and so, it is not strange that our love changes with our fortune, which is a question yet to be resolved if love governs fortune or fortune to love” (Hamlet, Prince of Denmark, act III, scene II).
Sketch of the current economic regime of marriage in Cuba
Economic issues related to the conjugal bond are regulated in Cuba in the Family Code of 1975, which, by the way, was also affected by popular intervention, as it was approved by a majority of more than 98% of the participants in meetings and assemblies convened for that purpose. . Said legal body establishes a single regime (there is no other possible alternative), legal (it is provided for by the Code itself) and mandatory (applicable to all marriages), which is called by the legislator marital community of property.
The latter means that not all the assets of the spouses become part of the joint patrimony once the marriage has occurred; but only those that are acquired after the formalization of the bond and in a burdensome manner (gratuities such as gifts, donations, inheritances, legacies, etc. are not included). The marital community of property supposes the existence of three patrimonies during the marital relationship: a common one that contains what is obtained in an expensive way by any of the spouses during the validity of the regime and that includes the product of the work and the benefit that is obtained of private property and two other personal assets of each member of the couple made up of the property they owned individually before the marriage and those they acquired free of charge.
The provisions related to the Cuban matrimonial economic regime are found in the aforementioned legal text in articles 29 to 42, listing when the assets are considered exclusive to each spouse (proper) and when to belong to the community (common); the expenses, obligations and administration of these common assets; as well as the completion of that common heritage. The matrimonial community of goods is the most important and indispensable economic resource that the Cuban family has to meet its needs. The set of assets that comprise it will constitute, on the one hand, the support of all the expenses and obligations that derive from life together and, on the other, the guarantee of third parties in their business with the spouses.
Do we need to change the conception of the economic regime of marriage in Cuba?
The current Family Code represented, at the time of its promulgation in 1975, a very important achievement in the improvement of the legal norms of the time and the institutionalization, transformation and development of the social relations that were taking place. Renowned jurists of the time were in charge of highlighting the value of the Code and the regulations it contained. Despite this, just over ten years later, criticisms, suggestions and needs for reforms to family regulations began to be published; being the questions related to the economic regime of the marriage of the most analyzed by the scientific community.
The fact that the Family Code only allows organizing the family economy through the marital community of property considerably limits the freedom of the spouses or future spouses, as it does not contemplate the possibility that they may agree on another system and prohibits its future modification. This may imply inconsistencies between the provisions of the law and what is desired by the parties according to their needs and interests and the family model to which they aspire.
The regulation of the marital community of property without options for the agreement of the couple left without effect the possibility of granting marriage contracts, which was a business that the spouses did with the intention of establishing how the economy of their marriage would work and that introduced the Spanish civil code in 1889 and in force in Cuba until 1975. The position of the revolutionary legislator contributed to dismantle one of the ways that wealthy individuals and families used to preserve their private property to the detriment of the less favored sector.
Admitting the marital community of property as the only possible economic regime responded to the idea that it was the best way to safeguard full equality between the spouses and the unity of the couple. This conception meant a recognition of female conquests and the strengthening of that sector, notably at a disadvantage at the time. It was one of the ways of offering women the well-deserved protection for which previous laws such as the 1940 Constitution and Law 9 of 1950 had prepared them, and which was stopped by the prevailing socioeconomic conditions.
From the recognition of the rights conquered in terms of gender, the current situation of women in Cuba is very different. In fact, this group appears today in all sectors of society with leading roles and an outstanding performance in the articulation and economic support of the family. By law, the Cuban Constitution of 2019 does not admit discrimination based on sex, gender, sexual orientation or gender identity (article 42) and recognizes the equality of men and women (article 43). The Constitution itself defends different types of families and encourages their protection by law by recognizing the principle of family plurality (article 81), while recognizing and guaranteeing people the right to property over goods (article 58) and regulating the right to liberty (article 46). In terms of the economic regime of marriage, all this means recognizing the free determination of the spouses and the possibility that each couple can choose the system that is most consistent with their needs and the family they intend to found.
The social, historical and economic conditions that motivated the 1975 legislator to establish an economic regime of single, legal and imperative marriage do not persist in Cuba today. The changes in the socio-family structure and dynamics, led by the empowerment of women, show the need to favor the freedom of the spouses in the economic organization of their marital relationship.
What does the Family Code Project propose in this regard?
In version 25 of the Family Code Project, recently presented and debated by the deputies of the National Assembly of People’s Power, the contents directly related to the economic regime of marriage are regulated in Chapters IV to VII of Title VI, opening up to a certain freedom that is specified in the possibility of choosing. That is, the spouses or future spouses are allowed to opt for one of the various economic regimes listed in the Code (community, separation or mixed) the one to which they want to submit the patrimonial relations of their marriage, or they are conferred the possibility of making small variations or combinations of those proposed.
A series of provisions common to all regimes are conceived that stand as a limit to the freedom of pacts or agreements of the spouses, under penalty of losing their validity and that are aimed at protecting married life and the family environment that is considered fundamental. This heading regulates issues related to the contents on which the couple cannot decide, the duty to contribute to family support, the economic value of domestic and care work, the destination of household goods upon the death of one of the spouses, some family responsibilities, and so on.
In relation to the contribution duty of the spouses, special interest is given to support, not only for the children of both spouses, but also for those of each member of the couple separately but who live in the common home, people in of disability and those in a state of vulnerability that are part of the family. Failure to comply with this duty may be legally required.
One of the most important successes of the Project is the express pronouncement regarding the consideration of domestic and care work as a contribution to marital obligations and the impossibility that the sexual division of roles and functions during cohabitation generates imbalances or damages between the spouses. In general, the assessment of work in the home or as a caregiver is quite reinforced in the proposal for the Family Code that is being developed in Cuba compared to the previous regulations.
The second section of Chapter IV itself, Title V begins to develop the regulation of marriage agreements, once marriage agreements in the Spanish Civil Code. These are agreements that couples take before or during the marriage to establish the economic regime applicable to their conjugal bond, the inventory of the assets that are contributed to the marriage, the acknowledgment of debts, the donations made by reason of the marriage and other provisions not capable of economic evaluation. Agreements with such content can only be agreed before the marriage because after the formalization of the bond it can only be agreed in relation to the modification of the adopted regime.
Marriage agreements begin to apply when the marriage is formalized, so they are considered businesses dependent on that other act. The Project provides that, if 6 months pass without the marital bond having been formalized, the previously agreed agreements are no longer applicable.
Marriage agreements have to adopt a special form, they are of a solemn type, they require a notarial public deed for their perfection, their existence, their validity. Then they need to be registered in the Civil Status Registry for it to take effect and must be respected and observed by everyone, beyond the two people who adopted them. In addition to the lack of subsequent marriage, marriage agreements may lose their applicability by the couple’s own agreement, because they are replaced by other agreements or because they are annulled by a competent court. The modification of the agreements is accepted as long as the third parties that had some advantage or right prior to the change of regime are not affected.
The economic regimes that are included within the possibility of election are the marital community of property, the separation and the mixed, which is formed by the combination of the first two. The community system is conceived with a supplementary nature (it is the one that operates in the absence of a pronouncement by the couple on the matter), in a position that seems to understand the historical, cultural, social, demographic, legal, political and psychological reasons that define the projection of Cuban society in relation to this issue.
Despite the fact that the Family Code Project takes up the regulation of a marital community property regime that is known in Cuban Family Law, it is very convenient to highlight that it does so with great mastery. The protection of children and adolescents, people with disabilities and vulnerable groups in general throughout the entire regulatory system is well known. There are elements that characterize the Family Code Project and respect for family pluralism is one of them. The recognition of the diversity of family models, interests, needs and dynamics within this group is transversal throughout the standard. The conception of the economic regime of marriage does not escape this guideline and the possibility of agreeing on marriage agreements comes to legitimize a democratization of family relations that goes beyond the single model, prevailing today, to propose a design open to diversity and pluralism.
The redesign of the economic regime of marriage in Cuba, diversity and pluralism