The Superintendence of Companies responded to a query regarding the legality of establishing in the corporate bylaws of a Simplified Stock Corporation (SAS) that shares do not form part of the spouse's and partner's marital and patrimonial assets and that failure to comply with this provision constitutes grounds for exclusion.
The entity clarified that, in accordance with the provisions of Article 45 of Law 1258 of 2008, Simplified Stock Corporations are subject, in matters not provided for by this law, to the provisions of their corporate bylaws, the rules applicable to corporations (sociedades anónimas), and, in the absence of the foregoing and to the extent they are not contradictory, to the rules governing the companies mentioned in the Commercial Code.
In general terms, one of the most notable features of SAS is the autonomy of will in drafting their bylaws, and therefore, it can be agreed therein that shareholders must mandatorily enter into marital agreements, with the idea of establishing the economic regime of their marriage or in order to prevent, through succession or divorce, the spouse from acquiring the status of shareholder.
However, regarding the exclusion of a shareholder, Article 39 of said law establishes that the bylaws may stipulate causes for exclusion of shareholders. If so, the reimbursement procedure provided for in Articles 14 to 16 of Law 22 of 1995 must be followed. If this reimbursement entails a capital reduction, compliance with the provisions of Article 145 of the Commercial Code is also required.
Finally, the Superintendence made clear that, in accordance with the provisions of Article 1494 of the Civil Code, obligations arise either from the concurrence of wills of two or more persons, or from a voluntary act of the person who obligates himself, as a consequence of an act that has caused injury or damage, or by operation of law. Obligations include those to do, the performance of which may be demanded through an executive process if the requirements are met.