If you’re a foreign national living in Spain and you’re married, you should be well informed about the economic systems of marriage that exist in Spain and how they apply to you.
The basics – Two types of Spanish systems of marriage
In Spain, there are two standard economic types or systems of marriage: ‘separación de bienes’ and ‘sociedad de gananciales’.
Unless specifically chosen by way of public document signed in front of a notary, the type of marriage is determined by default and usually depends upon which autonomous community or region the couple are resident once married.
‘Separación de bienes’ is the default choice in Cataluña, Aragón, Navarra, Balearic Islands and Basque Country.
Where a couple are married under ‘separación de bienes’ then each spouse is considered to own that which they brought into the marriage i.e. owned before they were married as well as that which they have acquired during the marriage either by purchase, inheritance or gift. They may dispose freely of such goods and assets as they wish.
So, where the couple purchases an asset, say a car, and one pays 75% of the cost while the other spouse pays the remaining 25% then upon divorce they would be entitled to a percentage of the value of the car based upon the percentage that they contributed to the purchase price.
If it is not possible to determine which of the spouses is the owner of a particular asset then it is split 50-50.
‘Sociedad de gananciales’ is the default position in the remaining Spanish regions and has the effect that all goods and assets acquired during the course of the marriage and which are not considered to be ‘private’ goods, are to be considered as belonging to both spouses equally. The income and pension of either spouse may be considered to belong to the matrimonial ‘pot’.
Assets which may not form part of a matrimonial ‘pot’ are known as ‘private’. These would include the following goods:
- Those rights and assets possessed before the marriage (even where funds considered ‘common’ to both spouses are used to pay later installments – with the exception of the matrimonial home, fixtures and fittings),
- Those rights and assets obtained during the marriage without payment e.g. inheritances or gifts received by a particular spouse
- Those rights and assets obtained in exchange for a private asset belonging to one of the spouses
- Rights that may only be transmitted via inheritance
- An award for personal damages or damages to private assets
- Clothes and personal belongings not of ‘extraordinary’ value
- Equipment necessary for the carrying-out of a trade or profession unless these are an integral part of a common enterprise
- Assets acquired with an initial payment by one of the spouses even though later installments are paid using common funds.
How your foreign-registered marriage is treated
Unless specified in your marriage contract, in Catalunya the separation of property regime applies (Art. 231-10 Civil Code of Cataluña). It is governed by Art. 231-11 to 231-30 Civil Code of Cataluña.
Currently, citizens in an international marriage or registered partnership face uncertainty when managing or sharing their property in case of divorce or death. It is difficult for them to know which Member State’s courts will be competent to deal with a matter concerning their property regime, what law will apply to their property regime and how they will have a decision on their property regime issued in one Member State recognized and enforced in another Member State.
In 2011 the Commission presented two proposals to provide legal certainty to international couples with regard to the management and the sharing of their property in case of divorce/separation or the death of one of its members. One of the proposals concerned the property regimes of married couples and the other the property regimes of registered partnerships. As these proposals concerned family law, they had to be adopted by the Council by unanimity after having consulted the European Parliament. After several years of negotiations, in December 2015 the Council concluded that no unanimity could be reached for the adoption of the proposals within a reasonable period of time.
Subsequently, 18 Member States (Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria, Finland and Cyprus) expressed their wish to establish enhanced cooperation between themselves in the area of the property regimes of international couples so as to enable Member States that so wished to adopt Union legislation in this area.
Following these requests, on 2 March 2016 the Commission adopted three proposals: one proposal for a Council decision authorising enhanced cooperation in the area of the property regimes of international couples, covering both marriages and registered partnerships, and two proposals for Council regulations implementing the enhanced cooperation, one on matrimonial property regimes and the other on the property regimes of registered partnerships.
The proposals for the two regulations contain rules to determine which Member State’s courts should deal with issues concerning the property regimes of international couples (jurisdiction), which law should apply to these matters (applicable law) and how judgments and notarial documents on these matters delivered in one Member State should be recognised and enforced in another Member State. Given that the proposed regulations deal with the management but in particular with the sharing of the international couple’s property in case of divorce/separation or the death of one of its members, these regulations are closely connected with the existing Union regulations on divorce/separation and succession.
The Commission proposals are now being examined by the Council and the European Parliament.
New rules applying as from 29 January 2019, aim to clarify the property rights for international married couples or registered partnerships. These clear rules on divorce or separation bring an end to parallel and possibly conflicting laws, for example on property or bank accounts, in different EU countries.
Since it was not possible to agree among all 28 EU countries, 18 of them have decided to work together on this initiative and will apply these rules. These are: Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden. The rest will continue to apply their respective national rules.
Full text of the two regulations
- Regulation applying to matrimonial property matters
- Regulation applying to property consequences of registered partnerships
These regulations will
- allow international couples to choose the law that applies to their property in case of death or divorce.
- enhance legal certainty for couples with an international dimension. The law of the country where the marriage was concluded or the partnership was registered applies to their property.
- bring legal certainty for international couples through coherent rules for identifying which country’s court is responsible and which law applies.
- increase predictability for couples through easier recognition of judgments, decisions and titles everywhere in the EU.
The regulations do not change national laws on marriage or registered partnerships.
The following Spanish law states that the property within a marriage will be governed either by the contract established by the couple at the time of their marriage. If that is not present, then it will be governed by the law of habitual residence of either, chosen at the time of marriage. If neither that is present, it will default to the law of the country where the couple was habitually resident immediately following their marriage. If that is not easily established, it will default to the place where the marriage was celebrated.
Los efectos del matrimonio se regirán por la ley personal común de los cónyuges al tiempo de contraerlo; en defecto de esta ley, por la ley personal o de la residencia habitual de cualquiera de ellos, elegida por ambos en documento auténtico otorgado antes de la celebración del matrimonio; a falta de esta elección, por la ley de la residencia habitual común inmediatamente posterior a la celebración, y, a falta de dicha residencia, por la del lugar de celebración del matrimonio.
– (Art. 9.2 CC).
It’s also interesting to know that there are several classifications of private property, which never get shared between the couple. For example, if one person receives a donation of real estate in his/her name, that is considered as private property and therefore is not part of the communal asset pool.