This guide covers…
This guide covers the rules in Spain concerning the treatment of a married couple’s finances.
It describes, in particular, the rules the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one “autonomous community” (comunidad autónoma) to another.
This guide does not cover how to getting married in Spain. See our Guide to Marriage in Spain.
Nor does it deal with the steps you must take to get a divorce. See our Guide to Getting a Divorce in Spain.
In Spain, every marriage is governed by a set of rules known variously as its matrimonial regime (régimen matrimonial), matrimonial economic regime (régimen económico matrimonial) or matrimonial asset regime (régimen patrimonial del matrimonio).
The same concept occurs in most civil law countries – countries whose legal systems are modelled on Roman or Napoleonic law – but it is much less familiar to those who live in Anglo-Saxon countries.
If you come from an Anglo-Saxon jurisdiction it is vital to understand the impact that the matrimonial regime can have upon you. If you come from a civil law jurisdiction, it is just as vital to understand the differences between the arrangements in your country and those in Spain.
Matrimonial regimes in Spain
In Spain, there are two categories of matrimonial regime: the primary regime and the secondary.
This is laid down by law and covers many aspects of the way in which the life of the husband and wife is to be regulated. For example:
- Obligations to contribute to the costs and expenses of the household
- The legal position of the matrimonial home
- The powers conferred on the spouses to enter into any agreement
This is, in the main, what people are talking about when they talk of matrimonial regimes.
In Spain, couple can choose between the various secondary matrimonial regimes that apply in their part of the country. Note that they are different in various parts of Spain.
Matrimonial property is governed by the Spanish Civil Code 1889, but the special civil laws (derechos forales) in force in some Autonomous Communities must also be taken into consideration.
This means that this guide does not apply to Catalonia, Aragon, Navarre, the Basque Country and the Balearic Islands. We will, in the fullness of time, produce separate guides to the law in those areas.
In most of Spain, there are three matrimonial regimes. A couple can, at the time of their marriage, choose which will apply to them. The choice has far-reaching consequences in the case of separation, divorce on upon insolvency or inheritance.
Comunidad de bienes or sociedad de gananciales
These are the same thing. This is the regime that applies in no other regime is selected.
Under this system, almost all assets and income obtained by each of the spouses while the system is in effect belong to them equally. They both have the right to manage them or dispose of them. On the death of one spouse, only their half is passed on to their heirs. In the case of divorce, they will be divided equally between the spouses (Art. 1344).
The system still provides for the existence of both personal and community property and allows personal property to become community property and vice versa by means of a specific written agreement between the spouses in the form of an ‘authentic act’: a notarised document.
Assets which are considered to remain personal assets are listed in Article 1346. They include assets which the spouses brought into the marriage and those which they have acquired by gift during the marriage: for example, by way of an inheritance from their parents.
As regards the disposal of assets, each spouse may freely dispose of his/her own assets.
Assets which are considered to be community property are listed in Article 1347. These include the income from the spouses’ work; rent and other income produced by their investments (whether they are investments of common or individually owned property); items bought from the common purse (whether in the name of one of the spouses or both); and businesses funded from communal assets.
A spouse is not responsible for the debts of the other (Art. 1373).
El régimen de separación de bienes
In the regime of separation of property each spouse retains ownership of all their property, whether it was obtained before or during the marriage. They will also be the owner of the fruits obtained from that property.
If it is not possible to prove which of the spouses owns a specific item, it will be deemed to belong to them equally.
The system of separation of property applies only when the spouses have agreed to it expressly in their marriage contract or where is is the default regime in the place where the marriage is celebrated: e.g. in Catalonia.
The main effects of the regime of separation of property are that the spouses each contribute to the expenses of the marriage and, unless they agree otherwise, they do so in proportion to their respective economic resources. Work done in the family home is considered as a contribution and gives the right to be recognised in the event of a divorce.
Régimen de participación
The participation regime consists of the right of each spouse to participate in the gains and benefits obtained by the other during the marriage but to retain full ownership of the property that belonged to him when it started and any that he acquires during the marriage.
If something is acquired together with the other spouse, it will belong to both of them.
When this participation regime comes to an end, the benefits are determined by calculating the difference between the initial net wealth and the final net wealth of each spouse. The spouses share both of their gains, unless otherwise agreed equally.
This is the least used.
Creating your matrimonial regime
This is done in your marriage contract.
Changing the matrimonial regime
Before the marriage or after it is celebrated, the couple can make a marriage agreement, which can stipulate, modify or replace the economic regime of their marriage.
Which is best?
There is no simple answer. It all depends upon the circumstances and attitude of the people concerned.