The Superintendency of Companies of Ecuador has clarified the regulation regarding the participation of spouses in the incorporation of a company. It establishes that spouses cannot individually participate in forming a corporation or a limited liability company in Ecuador. However, they may later become shareholders or partners of an already established company.
A “company” is legally defined as a contract, and according to Articles 218 and 1957 of the Ecuadorian Civil Code and Article 1 of the Companies Law, spouses are prohibited from entering into contracts with each other (except in legally established exceptions). Therefore, it is clear that spouses cannot independently participate as two partners or shareholders in incorporating a corporation or a limited liability company.
This prohibition is reinforced and expanded by the Companies Law (Articles 99 and 145), which explicitly forbids both spouses from jointly participating in the formation of a company and the registration process with the Mercantile Registry.
However, the doctrine of the Superintendency of Companies of Ecuador has clarified that this prohibition does not apply in the following cases:
- When the law expressly requires the mandatory participation of both spouses in the incorporation of companies involving contributions of real estate acquired during the marital partnership (as long as they do not act as founding partners).
- There is no legal prohibition preventing spouses from later becoming separate shareholders in the same company after its incorporation.
