Validez jurídica de la renuncia de gananciales mediante capitulaciones matrimoniales conforme al artículo 183 del código civil.

Abstract

In Ecuador, the marital property regime is governed by two legal aspects regulated in the Ecuadorian Civil Code: the marital partnership and marriage settlements. This study analyzes whether the waiver of community property agreed upon in marriage settlements is valid in accordance with the provisions of Article 183 of the Civil Code, and examines its relationship with the waiver that may be made after the dissolution of the marital partnership. Using a qualitative and dogmatic legal approach, a normative, systematic, jurisprudential, and notarial-registry practice analysis was conducted, interviews were applied to legal professionals, and the findings were contrasted with regional experience. The results are consistent: Article 183 requires that the fruits of separate property cover the burdens of the marital partnership; therefore, their exclusive enjoyment is not permitted, even if there has been a waiver. In contrast, Article 203 only allows the waiver of community property after the dissolution of the marital partnership. The practical problem is that there are no clear rules for calculating and allocating these fruits, which leads to uncertainty and different interpretations. For this reason, a minimum protocol is needed: an inventory with a cut-off date, accounting for fruits, recognition of rewards or credits between estates, enhanced publicity, and uniform criteria from the judiciary. At the legislative level, it is suggested to expressly coordinate Articles 183 and 203, add safeguards for potentially affected third parties, and allow compensatory clauses, all within a framework of equality and nondiscrimination. In summary, the study provides technical foundations to align private autonomy, family public order, and legal certainty.