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Marriage, Separation and Divorce in Spain

Marriage, Separation and Divorce in Spain

1.3 Spanish Matrimonial Regimes

The marital property regime may be defined as the assemble rules on the matrimonial property.

The spouses may agree their property regime by establishing the articles of marriage. If nothing is agreed, the community property matrimonial regime will be applicable, except for those Spanish communities where regional law provides a different regime, Autonomous Communities such as Catalonia, Aragón, Baleares, País Vasco and Navarra.
In Spain there are three types of matrimonial property regime.

The Community Property marital regime

The Community Property (regimen de gananciales) is the most common matrimonial property regime in Spain. If no pre nuptial agreement is signed, the spouses are automatically married under this regime. In those Autonomous Communities where regional law states that a different economic regime shall be applicable, the community property regime shall be expressly convened in the articles of marriage.

Under this regime, all property and rights acquired by a husband and wife during marriage is jointly owned. Each spouse owns an undivided one half in all such commonly owned property. In the event of divorce, each spouse is entitled to his / her share of this community property.

The assets of the communaute consists of all assets and rights owned by the spouses at the time of agreeing on the community property system, the assets acquired by the spouses during their marriage, which are the fruits of their efforts, as well as the profits of all kinds obtained by the spouses.

The separately-owned assets consists of:

These assets remain separately owned by the individual.
The spouses shall support and maintain the family with their common property.
The liabilities of the common property consists of all those debts which each of the spouses has incurred, for whatever reasons, during marriage.
The spouses shall jointly manage the common-held property.

The following are causes for dissolution of the marital common property:

When the community property has been dissolved, the property must be divided up, deducting the corresponding debts from the remaining jointly-owned property. After that the real estate must be renamed at the Property Registry once the property transfer tax and the capital gains tax on land have been paid.

Separate Property Matrimonial Regime

According to the Separate Property Marital Regime (Régimen de Separación de Bienes), each spouse owns the property acquired before marriage and in the course of it. Neither of the spouses need the other's consent to sell, rent… his/her assets.

Take on the household duties entitle to receive an economic compensation from the other spouse, which will be determined by the judicial authority when extinguishing the economic matrimonial regime.

In case of doubt on to which of the spouses a certain asset or right belong, it shall be understood that this belongs equally to both spouses in undivided halves.

Both spouses will jointly pay the costs to support the family in proportion to their respective income.
This regime applies in case that both spouses had expressly agreed this or when the regional law, from the Spanish Autonomous Community where the marriage was held, states this. Each of the spouses is only liable for the obligations that he or she contracted. The profit sharing marital regime

General considerations

The profit sharing matrimonial regime (Régimen de participación de bienes) attributes to any of the spouses, upon the extinguishments of the system, the entitlement to participate or share in the profits obtained by the other spouse during the time in which such system has been effective. This regime needs to be agreed upon in the articles of marriage, before or during marriage.

Each spouse is entitled to manage, enjoy and free disposition of their own assets as well as of those acquired while this economic system is in course. This regime may be extinguished by the same causes that apply for the community property regime. Upon the extinction of the regime, any of the spouses is entitled to participate or share in the profits obtained by the other spouse during the time in which such system has been effective. How the credits are determined? Upon termination of this regime the profits are calculated as the difference between the final and initial property of each spouse. The profits shall be shared between the spouses in the same proportion, 50% percent each. After calculations, the spouse who has obtained less profits shall be entitled to half of the difference between the value of his own profits and that of the profits obtained by the other spouse. If only one of the spouses has obtained profits, the other spouse shall be entitled to half the value of such profits.

The spouses may convene a participation in profits different from one half of the profits if it is established reciprocally and equally in favour of any of them.

How the participation credit shall be paid?

The participation credit shall be paid in cash, though the indebted party may request from the judicial authority a postponement of the payment credit. The postponement of the payment may not exceed the period of 3 years, the participation credit plus interests shall be granted. The participation credit may also be paid by means of the granting of particular assets, upon agreement of the interested parties or determined by the judicial authority. If the debtor lacks the sufficient assets to pay the participation credit, the creditor may request the rescission of the alienations that the debtor may have made in gratuitous manner without the creditor's consent and those made in fraud of his own rights.These actions expire after 2 years from the termination of the system. These are only general guidelines, other questions about the law's applications to individual cases shall be directed to a Spanish lawyer.



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