Reflecții asupra lichidării regimului matrimonial al separației de bunuri cu clauză de participare la achiziții
Reflections on the liquidation of the matrimonial regime of the separation of goods with a participation to acquisitions clause

Summary/Abstract: According to art. 360 para. (2) of the Civil Code, the liquidation of the matrimonial regime of the separation of assets takes place, if this is the choice of the spouses recorded in their matrimonial agreement, depending on the mass of assets purchased by each of the consorts, based on which the participation claim is established. Unless otherwise stipulated, the participation claim represents half of the value difference between the two net purchase masses and is due to the spouse whose purchase mass is higher. Essentially (and elementary), determining the participation claim involves going through three stages: determining the net acquisition mass of each of the spouses; establishing the value difference between the two masses of net acquisitions; establishing the participation claim. The first of these is the most complex and practically decides the amount of the participation claim, as well as its beneficiary; the subsequent steps are nothing but arithmetic calculations that operate with values from the first phase of liquidation. We intend to draw attention to the elements without which the participation claim algorithm is only a generic equation, namely the composition of the net acquisition mass of each of the spouses and the evaluation of the assets included 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 to liquidate the matrimonial regime of separation of property, even under a meticulously detailed matrimonial agreement.

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