Friday, 29th May 2020
LEGAL Article
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This Month's Magazine
Not necessarily pre-nuptial agreements

Not necessarily pre-nuptial agreements

Martel & Urnieta Abogados outline that in addition to the obvious benefits of marrying in Andalucia, there may be some legal advantages to do so in Spain.

Nuptial Agreement
This is an agreement formally made by the parties to the marriage in order to establish, clarify or alter the basis of asset ownership in the course of the marriage. It is not a legal requisite in Spain that spouses should make such an agreement, however if the parties to the marriage find the need for it, the following conditions must be met:

  • The agreement shall be made before a Notary Public.
  • The agreement can be made before and even at any time after marriage.
  • The agreement must be registered with the Spanish Civil Registry.
  • The agreement shall establish the regime of matrimonial property.

If there is no agreement, it means that the communal property matrimonial regime will be applicable, except in those Spanish communities where regional law provides a different regime (Catalonia, Arag�n, Baleares, Pa�s Vasco and Navarra).
 
Spanish matrimonial property regimes

The general guideline is that in Spain there are three types of matrimonial property regime:

1. The Communal Property marital regime
Under this regime, all property and rights acquired by a husband and wife during marriage is jointly owned. That is the assets acquired by the spouses during their marriage, which are the fruits of their efforts, as well as the profits of all kinds made by the spouses. Each spouse owns an undivided one half in all such commonly owned property and, in the event of divorce, each spouse is entitled to his / her share of this communal property.

The exception assets that remain individually and separately owned are:

  • Any property previously owned or acquired after the marriage by personal gift, inheritance or legacy. 
  • Those assets needed to perform a professional activity (distinct from the spouse�s). 
  • Assets acquired through subrogation of other exclusive rights. 
  • The sums by way of compensations paid for injuries

Of course the regime comes to an end in the following circumstances: 

  • death of one of the spouses
  • the marriage is declared void
  • legal separation
  • upon agreeing a different regime
  • legal incapacity
  • and family abandonment or confirmed disappearance of a spouse.

At the time of dissolution, all debts must be deducted from the jointly owned assets and the remainder is divided equally. Any real property that needs to be renamed at the Property Registry will be subject to property transfer tax and capital gains tax. 


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2. Separate Property Matrimonial Regime
The Regimen de Separacion de Bienes, means that each spouse owns the property acquired before and after marriage. Neither of the spouses needs the other's consent to sell, rent, his/her assets. Taking on the household duties entitles a spouse to receive an economic compensation from the other, this will be determined by the Court in case of termination of the matrimonial regime agreement.

Should there be any doubt as to ownership of an asset, it will be deemed that it is jointly owned in equal shares. 

Both spouses will jointly pay the costs of supporting the family in proportion to their respective income.

Each of the spouses is only liable for the obligations that he or she contracted.

3. The profit sharing marital regime 
General considerations
Each spouse is entitled to manage, enjoy and freely dispose of his/her own assets as well as of those acquired while this regime is in force, but the R�gimen de participaci�n de bienes gives entitlement to either spouse to benefit from a share in any profits made by the other at any time after the agreement becomes effective. The details and percentages can be agreed before or after marriage.

Termination of the agreement is reached under the same factors as for the communal property regime. Upon termination both spouses are entitled to participate or share in each other�s profits during the time when the agreement was in vigour.

How the credits are determined
Upon termination of the agreement, the profit is represented by the difference between the final and initial value of assets of each spouse and shared as agreed. Unless otherwise determined the share of profits shall be 50% to each spouse.

The spouse deemed to have made 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 made profits, the other spouse shall be entitled to his agreed share of profits.
The agreed percentage of share in profits may be different from 50% as long as it is the same for both.

How the participation credit shall be paid
Payment of the profit share is to be made in cash, however the indebted party may request a postponement not to exceed 3 years, and interest will be added.

It can also be paid by assigning a particular asset as may be agreed by the parties or determined by the Court.



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