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Lottery winnings: Should accounted for in the assets of the company Dower?

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Lottery winnings: Should accounted for in the assets of the company Dower?

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The articles 1.344 a 1410 de nuestro Código Civil They contain everything you need to know about the conjugal partnership.

Through this scheme they are common among members of wedlock profits obtained during the duration of the union, and then, the dissolution of the company, half will be allocated by each of them.

In common law, se aplica el Código Civil, It is indicating that the economic regime of marriage will be the spouses in marriage contracts stipulated, and in their absence, which is the most current- or when these are ineffective, the regime will be to gananciales (article 1316 CC).

En lo relativo a los lugares donde rigen los leasehold civil or special rights, also they are regulated goods marital community, and so:

– The regime of community property of Catalonia (arts. 232-30 a 232-38 de la Ley 25/2010, the second book of the Civil Code of Catalonia).

– The germanía in Valencia (articles 38 a 43 de la Ley 10/2007, Valencian matrimonial property regime).

– Foral regime communication goods Bizkaia (articles 95 a 103 de la Ley 3/1992, of 1 de julio, the Basque Parliament, the Provincial Civil Law of the Basque Country).

– The conjugal partnership of gains of Navarra (laws 82 a 91 de la Ley 1/1973 , by the compilation of Navarra Foral Civil Law approved.

– Gananciales Society of Galicia (articles 171 and 172 de la Ley 2/2006, civil law of Galicia).

– Conjugal consortium of Aragon (articles 28 a 88 de la Ley 2/2003, of 12 de febrero, of matrimonial property and widowhood) While this law was repealed by the sole repealing provision of Legislative Decree 1/2011, of 22 March, the Government of Aragon, approving the Code of Regional Law of Aragon (B.O.A. No. 63, of 29 de marzo de 2011), in force since 23 de abril de 2011. Referring to the said Title IV conjugal consortium.

– Communication assets brought to marriage and marital subject to partition as provided for in the Law of Baylío (articles 11 and 42 Organic Law 1/1983, of 25 de febrero, Statute of Autonomy of Extremadura).

At first, What goods are gananciales?

El artículo 1347 the Code nos ofrece un listado:

– The activity from spouses, either common or individual of each. It may be for work or any activity or industry.

– The fruits, income or interest received both marital and separate property.

– The acquired for consideration at the expense of common stock, While the acquisition is made for the community, well for one of the spouses.

– Acquired by right of withdrawal of character Dower, even when they were with private funds, in which case the company shall be payable by spouse satisfied value.

– Enterprises and institutions founded during the life of society by any of the spouses at the expense of the commons. If the formation of the company or establishment concur proprietary capital and common equity, It applies the provisions in Article 1.354.

Regarding the profits from the game by either spouse Article 1351 expressly states that belong to the community of property.

the content must take into account Article 1361 the Código Civil, indicating a rebuttable presumption (esto es, that admits evidence to the contrary), ganancialidad in favor of existing property during marriage.

On lottery winnings and gambling

Although the issue seems abundantly clear in legislation, in practice many questions arise, and this is reflected in the number of lawsuits that reach court. What happens in these cases when marriage is in the process of separation And if they are separated in fact long ago? Also cohabiting, when they break, have the same problem is it shared this money or not?

Indeed separated – When the conjugal union is still active

this sentence, dictated by the Supreme Court 22 December 2000 (curiously the same day of the draw for the Christmas Lottery), Dower called it good money from a lottery ticket he had bought winning the estranged husband indeed. This is because the fact of being separated in fact according to the Board not impacted on society gananciales, which was still active. Although money claimed through a bank account belonging to the mother's husband, He could not prove that the lottery ticket belonged to the mother.

Sin embargo, the Provincial Court of Sta. Cruz de Tenerife, en sentencia dictada el 17 de mayo de 2010 consideró que en la liquidación de los gananciales no debía incluirse el premio de la ONCE que había obtenido en un sorteo posterior a la ruptura conyugal. This statement is interesting because reasons, as dictated by law Provincial Courts, without ignoring the rule, in some exceptional cases, especially in those where there is a long period of time between de facto separation and liquidation of the conjugal partnership, It has admitted a solution de facto community property, fixing on that date inventory of community property for, that way, bring, especially the assets of the company, goods or cash, Charges taken that were of such assets for the benefit of only one of the spouses, and therefore they proved nonexistent at the time of the judgment of separation, which it is legally determines the time of dissolution.

The Provincial Court of León (Men of. Lion 86/2002, of 6 March) He understood not appropriate to include in the assets of the conjugal partnership primitive lottery prize won by husband, fact separated from his wife was almost a year. The award was big, of 191 million pesetas. The Court understood that the general rule included as an asset the profits of the game was not applicable to this case, then it was gone the foundation of community of property. There was a definite break of marital cohabitation, so it does not fit the other spouse claiming rights to a property whose acquisition has not contributed.

When marriage is governed by a foreign law

In a process in which one of the spouses -both former Colombian- He claimed the other half of a lottery prize won, the Provincial Court of Cantabria, (AP Cantabria S. 24 marzo 2015), Dower character concluded the prize. The defendant liquidated the community property without including the prize, which it was hidden their perception. While Article 1351 CC. español establece que en este caso el premio es ganancial, both personal law should apply (Colombian), but the article 1782 Colombian CC does not include the assumption of random awards in these cases, so eventually the Spanish law applies. Buying a lottery ticket by a certain person, supposed, as expensive business that is, that the person buying the ticket price paid. The money received is not produced by or for a legacy nor a legacy, or by donation, but under an onerous contract, random, so that the legal reason for giving and receiving that amount is not lucrative or perfectly free will of who pays, but because it is legally bound. By not mentioned the Colombian precept, application of Spanish law. The evidence examined did not establish that the ticket was paid for it witness, but by the defendant, with money Dower, Dower being the prize.

Hiding the other of the prize

It is more common than we think, one of the members of the -marriage partner or not- hide the other for various reasons, he has won the lottery.

This time, the Provincial Court of Malaga sentence 28 de septiembre de 2016, He included in the assets of the corresponding starting a lottery prize that the husband hid wife. Having established the existence of the prize and its collection by the defendant, and that the date of that prize perceive the conjugal partnership was in force, considering the date of marriage and separation, came the inclusion of the amount received in the active inventory of community property.

Awarded before marriage and the money used for family expenses

The Provincial Court of Valencia, en sentencia de 16 de noviembre de 2005 , He concluded that the prize obtained before the marriage could not be included in the Dower active in the settlement where the amount has been designed to address multiple family expenses over the life of society. And this is so, because the use of private funds for buying a community property, It implies the existence of a claim for the spouse who provided.

And cohabiting?

La clave está en la existence of a covenant community property, analogous to gananciales.

So, the Provincial Court of Alicante (S.AP Alicante 18 February 2005), He issued a judgment dismissing the claim half the lottery prize that one of the members of the couple claimed the other. And the refusal was because they had not had during the trial -a living room- will be an integral economic community, but only to serve, with the amount they put in common, ordinary family expenses. Further, coexistence is not credited at the time of being graceful ticket.

Likewise the Court of First Instance of Ayamonte manifested itself in a judgment handed down on 6 de octubre de 2006. The lawsuit was claimed by one of the members of the couple half the lottery winnings on the other to understand that there was a community of property during the period of cohabitation. The Court considered that there was no conclusive facts to prove that statement (que entre las partes existía la voluntad deliberada y consciente de constituir una comunidad universal de bienes that would make the profits made by either revert in the same), so his claim was rejected.

Had better luck this time the claimant, and his former partner committed a crime of misappropriation, and he had to repay the amount of 102.500 pesetas, corresponding to half of the prize with coupon ONCE. The Supreme Court Criminal (Sentencia 2059/2001, of 29 de octubre), concluyó que en este caso existía por parte de la pareja un tacit pact community property, analogous to the conjugal partnership. For example man, continuously and lasting she brought the couple their income from work to meet the needs of coexistence; had joint checking accounts. Other tests like the festival celebrated by the couple to celebrate the award was paid for with money the man had taken as Christmas bonus and had been admitted to the indistinctly realized they were headlines, evidenciaban la will of both cohabitants to make common gains and losses.

 

 

 

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