Debts of the marital partnership

portada deudas de la sociedad conyugal

Debts of the marital partnership

In Colombia, the marital partnership is a legal regime that establishes the existence of a common patrimony between the spouses during the marriage. However, this regime also implies the possibility of debts or also called liabilities that affect the marital partnership.

These are obligations acquired during the marriage that affect the common property of the spouses. These debts may arise from different sources such as loans, credits, mortgages, among others. It is important to keep in mind that for a debt to be considered a marital debt it must have been acquired for the benefit of the marital partnership, i.e. to satisfy social needs, for the establishment and upbringing of children and all related expenses to acquire, improve or repair assets that will be social. Specifically, article 1796 of the civil code indicates that the marital partnership is obliged to pay:

  1. All the pensions and interests that run, either against the society, or against any of the spouses and that are accrued during the society.
  2. The debts and obligations contracted during their existence by the husband or the wife, and which are not personal to him or her, such as those contracted for the establishment of the children of a previous marriage. The partnership, therefore, is obligated with the same limitation, to the expenditure of any bond, mortgage or pledge constituted by any of the spouses.
  3. All the personal debts of each of the spouses, the debtor being obliged to compensate the society what the latter invests in it.
  4. All burdens and usufructuary repairs of the social property of each spouse.
  5. For the maintenance of the spouses; for the maintenance, education and establishment of the common descendants, and for all other family burdens.

How are the debts of the marital partnership divided?

In Colombia, the debts of the marital partnership are divided according to the principle of joint and several liability. This means that both spouses are equally liable for all debts acquired during the marriage, regardless of who was the direct beneficiary of the debt. It does not matter if only one spouse signed the contract or applied for the loan, both are obligated to assume the debt in its entirety.

Thus, in the event of divorce or liquidation of the marital partnership, the debts are divided in half. Each spouse will be responsible for paying one-half of the debts accrued during the marriage, unless otherwise agreed through a settlement agreement or court proceeding.

Finally, it is important to mention that the doctrine has spoken of two types of liabilities:

  1. External liabilities: also called absolute, real. These are the debts owed to third parties that exist at the time of dissolution of the marital partnership.
  2. Internal liabilities: also called relative liabilities, which are the debts that the marital partnership has with each of the spouses, that is to say, they are the compensations against the marital partnership.