Chile: Closing the credit gap for women entrepreneurs | White & Case LLP International Law Firm, Global Law Practice
Closing the credit gap for women entrepreneurs

Chile: Closing the credit gap for women entrepreneurs

Strong constitutional protections, but difficulties persist in some areas of marital law

Under one marital arrangement, women require special authorization to form a business, own shares in a corporation or become sole proprietor.

Article 1 of the Chilean Constitution sets out a broad constitutional principle of equality that "all people are born free and equal in their dignity and rights." The impact of this constitutional imperative is felt widely and leads to the conclusion that there are minimal legal or regulatory barriers that run counter to the goal of financial inclusion.

Outdated legislation still in force in Chile nonetheless limits women's opportunity in certain instances. Markedly, under the sociedad conyugal—the default marital regime established by the Chilean Civil Code13 —women's economic rights are limited, as the husband is the sole administrator of his and his wife's joint assets. The woman in such a regime ceases to be an equal administrator of assets and social goods. As a result of these limitations, a married woman must prove—both to her husband and to third parties—the origin and ownership of her assets (Article 11 of Chile's Commercial Code and Article 150 of its Civil Code). Similarly, married women require special authorization to form a business, to own shares in a corporation or to become sole proprietor of one (Article 349 of the Code of Commerce). Women who are either unmarried or married under a different, less common regime face no such restrictions.

The principle of equality established in Article 1 of the Constitution also applies to labor relations. Article 19 of the Constitution prohibits "any discrimination which is not based on capabilities or personal skills." Article 2 of the Labor Code states that "acts of discrimination contravene the principles of the labor laws," expressly including gender among categories subject to the question of discrimination.14

Chile also offers social security programs that advance the cause of financial inclusion. For instance, Chilean law provides a subsidy to women per live birth. In the event of divorce, judges are granted discretion in redistributing pension savings to favor the less financially secure spouse—almost invariably women, who may have elected not to enter the job market during their prime working years.

In summary, other than the regulations applicable to the sociedad conyugal regime, which may be opted-out of by agreeing to a different marital regime, the Chilean legal system is structured in a way that, at least in theory, affords gender equality.

 

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13—As a representative indication of the primacy of this marital arrangement, according to a survey conducted by the Civil Registry in November of 2015, of the 58,676 marriages performed in Chile through that month, 31,049 were under the sociedad conyugal regime.
14—Note that the Labor Code provides for certain protections in favor of women. For example, under Article 211- J, women cannot carry, transport, load, haul or push loads weighing more than 20 kilograms.

 

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