As is well known, through the execution of prenuptial or postnuptial agreements (capitulaciones matrimoniales), before or during a marriage, spouses may agree to waive their right to participate in half of the net value of the community property verified within the other's estate. This right also applies to de facto unions (uniones de hecho), pursuant to the provisions of Resolution No. 13920 issued by the Constitutional Chamber on June 9, 2023.

Nevertheless, in accordance with the provisions of Article 167 of the Family Code (Código de Familia), the right to support/alimony (alimentos) is non-renounceable. Furthermore, said article establishes that the support obligation is imprescriptible (exempt from statutes of limitation), strictly personal (personalísima), and non-compensable (cannot be offset against other debts).

Therefore, this statutory rule prevents spouses or individuals in a de facto union from waiving their right to support, whether before or during the marriage or union.

However, the Second Chamber of the Supreme Court of Justice (Sala Segunda de la Corte Suprema de Justicia) has interpreted through consistent jurisprudence that the law does permit spouses to agree upon a support payment to be borne by one of them, or to waive their right to request reciprocal support from each other within a mutual consent divorce agreement. This is because the collection of support between spouses is rooted in one of the statutory obligations arising from marriage, which is mutual aid (socorro mutuo), as established under Article 34 of the Family Code. Hence, upon the occurrence of a divorce, which puts an end to the marriage, said duty of mutual aid ceases in principle, thereby enabling the waiver according to the Chamber's criteria.

In this regard, the Chamber has stated: “...It is clear that in the case of a divorce by mutual consent, the law permits the spouses to agree on a support payment to be borne by one of them, or to waive their right to reciprocally request support, because this results from the framework entailed by the dissolution of the marriage through the will of both spouses, upon which the normal rights and duties of said institution cease....” SECOND CHAMBER OF THE SUPREME COURT OF JUSTICE. Judgment No. 1502, issued at ten hours and six minutes on the eleventh day of November, two thousand ten.

In light of the foregoing, it is my view that it is important to explicitly state within the public deed (escritura pública) in which the matrimonial agreements are covenanted that the executing parties possess, at least at the time of signing said deed, sufficient independent resources to support themselves. While it is clear that their financial situation may vary during the union, this approach at least establishes an express acknowledgement by both appearing parties before the Notary Public regarding their financial capacity at that moment, and the fact that they can maintain themselves without requiring financial support from the other.