Am I married in a partnership or in a separation scheme? The economic matrimonial regime in Spain.

The matrimonial economic regime is the one that regulates the economic and patrimonial effects of the marriage.

This is determined at the time of contracting it, and it will be immutable, that is, it will never change, despite the change of residence to another autonomous community or foreigner, except if they make matrimonial capitulations.

In Spain, to know what economic regime two people have married, we must resort to Article 9.2 of the Civil Code, which states that:

"The effects of marriage shall be governed by the common personal law of the spouses at the time of contracting it; in default of this law, by the personal law or the habitual residence of any one of them, chosen by both in authentic document granted before the celebration of the marriage; in the absence of such a choice, by the law of the common habitual residence immediately after the celebration, and, in the absence of such residence, by the place of the marriage.Nullity, separation and divorce shall be governed by the law determined by article 107.”

Consequently, and unless both spouses have gone to a notary to make matrimonial capitulations, the Spanish Civil Code establishes a supplementary order of criteria to which we must attend depending on the circumstances of each case, being the main rule that the regime marriage shall be that which corresponds to the common personal law of the spouses.

The previously transcribed article must be taken into account because globalization is becoming more common the existence of marriages in which the spouses have a different personal law (marriages between foreigners and marriages between residents in Spain of different autonomous communities which have different autonomous legislation, or between Spanish and foreign, etc.), a fact that entails frequently applying the secondary criteria established in art. 9.2 of the Spanish Civil Code in order to identify the economic regime governing marriage.

If a marriage does not wish to be governed by the economic system that the law establishes, what it must do is to go to a notary and stipulate in matrimonial capitulations that economic regime that they desire without more limitations than those established in the Civil Code, thus obviating the which is applied by default.

For informative purposes, in case of not having made these matrimonial capitulations before a notary, and if both spouses have the same civilian neighborhood, to indicate that in the majority of autonomous communities of Spain it governs as a supplementary regime the denominated partnership, by means of which the profits or benefits obtained by any of them are made common to the spouses, which will be attributed to them by half upon dissolution through divorce.

In other autonomies such as Catalonia and the Balearic Islands, the separation of property is applied by default, so that if the two spouses have the same civilian neighborhood, this economic matrimonial regime will be applied, which is very different from that of the society of because it implies that each spouse has the property, enjoyment, administration and free disposition of all their property; being that in other regions like Navarre or the Basque Country the applicable economic regime is more particular and concrete, denominated Legal Society of reconquest and Foral communication of goods respectively.

Therefore, when two persons marry, they must bear in mind that in default of expressing their will by marriage capitulations before Notary, they will be applied the regime that establishes the default law which has different rules for its determination.

To establish the default law of covenant by capitulations, the Spanish legislation establishes the following rules to establish the matrimonial economic regime:

1) It will be established as a regime that says the common personal law of the spouses at the time of marriage. For example, in the case of a marriage consisting of two people who have the Catalan civilian neighborhood, they will have as economic matrimonial regime the separation of property, which is established by the Common Law of them (The Civil Code of Catalonia). In the case of two persons with a civil area in the Community of Madrid, the common personal law is the Spanish Civil Code, so that the matrimonial economic regime applicable will be that of partnership, and even if they decide to marry in the foreigner or other autonomous community.

2) In case there is no common personal law, such as two people who marry, one with Andalusian Civil neighborhood and another with civil neighborhood of Madrid, the law of residence will apply immediately after the marriage. That is to say, if that Andalusian-Madrid couple marry in Zaragoza but have their first common habitual residence in Barcelona, the regime of separation of property that is the one that governs in Catalonia must be applied.

3) If we are in a situation in which a common personal law can not be applied, nor do they happen to reside in the same domicile (couples, for example, who for business reasons continually travel separately), in that case, the law that should apply to the place where they got married. Thus, if a couple with a civilian neighborhood of the Balearic Islands and the other "Madrileña" marries in Barcelona and both consorts will be living abroad in separate homes for professional reasons, in that case, the economic regime to apply will be that of separation of property (Catalunya), to be the place of marriage.

Do not confuse civil neighborhood with registration, since they are different things. The civil neighborhood is acquired by staying in the same place for a certain time period.

In many cases, notarial deeds made during marriage (buying and selling housing, wills, etc.) contain errors as to what is the matrimonial economic regime of the marriage. Regardless of what is stated in these writings, it will always have to be in the real economic regime, which is determined on the basis of matrimonial capitulations, or based on the rules we have mentioned in this post.

Likewise, it recalls that, as we have indicated before, the fact of changing residence or even of civilian neighborhood, does not alter, by itself, the economic matrimonial regime, so, by way of example, if a marriage in which both Andalusians are going to live in Barcelona, despite the fact that they reside in Catalonia for 30 years and already have a Catalan civilian neighborhood, they will always continue to be married under a partnership.

Due to the complexity of the matter, and in view of the importance and economic importance of the matrimonial economic regime, it is necessary that in case of doubt contact a lawyer. Think of the fact that the matrimonial economic regime is important when it comes to future inheritance, as well as the adjudications of assets that may correspond to each of the spouses in case of divorce, since it is clear that the result regarding the adjudication of assets in a divorce of married persons in a partnership, will be very different from the adjudication of assets that may occur in persons in which they have a marital economic regime of separation of property.

Do you have doubts about your economic marriage regime? Contact us.

30 Comments

Lucia ibarra Acosta

Posted on: 10-04-2018

Estoy casada en argentina en régimen ganancial , actualmente recidimos en baleares . Voy a homologar el matrimonio porque octuve nacionalidad española. Cambia el régimen ?

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