Housing acquired through a housing subsidy by a married woman under the community property regime: reserved patrimony, waiver of marital gains and third-party protection

Abstract

This article examines the proprietary status of a dwelling acquired through a State housing subsidy by a married woman subject to the community property regime. It argues that the special legislation does not create an autonomous patrimonial category and cannot be reduced to a mere capacity rule for entering into purchase, loan or mortgage contracts. Rather, it must be integrated into the regime of Article 150 of the Chilean Civil Code. The specific consequence of that integration is that the dwelling enters the wife’s reserved patrimony, through a source different from separate work, but subject to the same structure regarding administration, liability, proof, waiver of marital gains and third-party protection. The contribution of the article lies in systematizing a protective judicial line, clarifying its dogmatic basis, confronting contrary doctrine and organizing the effects of the proposed solution around three questions: which patrimony receives the asset, what happens upon dissolution of the community property regime and which powers belong to the wife over the dwelling.