1.1 Legal regime: Common civil law and the particular law of certain Autonomous Communities
It would be incorrect to speak of a single law or matrimonial property regime in Spain. Certain Autonomous Communities, alongside the State, have jurisdiction over civil law (although not all include matrimonial property regimes among the matters they can regulate). This means that all Spanish citizens have a specific regional citizenship (vecindad civil) in addition to their Spanish nationality. This determines whether they are subject to the common civil law or to a specific or regional civil law (Article 14 of the Civil Code).
The regions with their own civil law include Aragon, Catalonia, Balearic Islands, Navarre, Basque Country, Galicia and Valencia (although the latter does not regulate matrimonial property regimes since the law it passed was declared unconstitutional by the Constitutional Court (Tribunal Constitucional)). Thus, citizens of the remaining Autonomous Communities have ‘common’ regional citizenship (vecindad civil común) (Article 14 of the Civil Code regulates how regional citizenship is acquired).
- In the case of marriage between Spanish citizens (with no international connection), to identify the law applicable to the matrimonial property regime and whether to apply common law or the law of a particular Autonomous Community, it is necessary to turn to the rules of interregional law contained in the Preliminary Title of the Civil Code (Título Preliminar del Código Civil) ((Articles 9(2) and 16 of the Civil Code).
- When one of the spouses is not Spanish or the married couple has a connection to another country, the applicable law is determined according to the provisions of Article 33 of Regulation (EU) 2016/1103, which is understood in such a way that, in relation to Spanish citizens, where the Regulation refers to nationality as a criterion of connection, this is regarded as a reference to regional citizenship.
However, regional citizenship is a concept that only applies to Spanish citizens (Article 15 of the Civil Code); therefore, since it does not apply to foreigners, Article 33(2) comes into play, replacing the law of nationality with the law of closest connections, i.e. the law of the territorial unit with which the spouses have the closest connections.
1.2 Matrimonial property regimes applicable in the absence of an agreement between the spouses under the Civil Code and the particular laws of the Autonomous Communities
With regard to specifying the matrimonial property regime in cases where there is no agreement between the spouses, supplementary law applies, which varies depending on the applicable internal civil law:
It should be mentioned that in Aragon the surviving spouse has a right to usufruct (usufructo viudal aragonés) which, while an inheritance right, is also a prospective right during life (derecho expectante de viudedad).
Spouses can stipulate their matrimonial property regime such that the supplementary provisions mentioned in the previous section do not apply.
For this purpose they must sign a public pre-marital agreement before a notary (Articles 1280 and 1315 of the Civil Code), which must be recorded in the civil registry, and the notary must, on the same day as the agreement is signed, send an authorised electronic copy of the public document to the corresponding registrar as evidence in the registration of the marriage (Article 60 of the Civil Registry Act (Ley del Registro Civil)).
The spouses may also modify the matrimonial property regime during the marriage by meeting the same formal requirements (Article 1331 of the Civil Code) and without this infringing third‑party rights (Article 1317 of the Civil Code).
This same possibility is provided for in the Autonomous Communities that have their own civil law for marriages governed by that law: Articles 231(10) et seq. of the Catalonia Civil Code; Article 3 of the Balearic Islands Civil Law Code as regards Mallorca and Menorca (capítulos) and Article 66 of the Balearic Islands Civil Law Code as regards Ibiza and Formentera (espolits); Articles 125 et seq. of the Basque Civil Law Act; Articles 171 et seq. of the Galicia Civil Law Act; Article 185 of the Aragon Regional Legal Code; Act 78 et seq. of the Navarre Regional Civil Law Code.
Spouses are free to decide their matrimonial property regime and may choose to apply any regime, including those that are regulated by any of the Spanish civil laws (in which are detailed both the matrimonial property regime to be applied in the absence of an agreement and others that the parties may agree to) and those provided for in the regulations of other states. However, provisions contrary to the law or decency, or which limit the equality of rights belonging to each spouse, must never be incorporated (Article 1328 of the Civil Code and Article 14 of the Spanish Constitution).
Annulment, separation and divorce end the matrimonial property regime. This is provided for in the various regulations of the different matrimonial property regimes (including, for example, Article 1392 of the Civil Code with respect to community of property or Article 1415 of the Civil Code regulating participatory regimes in the Civil Code).
In community of property regimes, the procedure set out in the Code of Civil Procedure (Ley de Enjuiciamiento Civil) must be followed for liquidation. While this is carried out, a form of jointly owned property arises between the spouses, distinct from the other community of property regimes, with a specific legal regime, which remains in place for the duration of the community until, through the appropriate liquidation-division transactions, a specific, individualised share of the property is produced for each of the co-owners.
A community of property (sociedad de gananciales) may be liquidated pursuant to the rules found in Articles 1392 to 1410 of the Civil Code, by mutual agreement in the presence of a notary or, in the absence of such an agreement, before the court, which will be subject to the procedure found in the Code of Civil Procedure.
Under the separation of property regime, it is not necessary to liquidate the matrimonial property regime, since each spouse is owner of his or her property. Property which belongs to both spouses from the beginning is subject to a co-ownership regime, which continues as before following annulment, separation or divorce, without prejudice to either of the co-owners being able to seek its division (as is the case in all situations of co-ownership).
Death also ends the matrimonial property regime, as provided for in the various regulations of the different matrimonial property regimes (including e.g. Article 1392 of the Civil Code in conjunction with Article 85 thereof with respect to community of property or Article 1415 of the Civil Code regulating participatory regimes in the Civil Code).
Without prejudice to anything the deceased spouse may have arranged in a last will or testament, certain rights are laid down for the widowed spouse depending on the law applicable to succession. Likewise, if the spouse dies intestate, he or she has certain rights in the succession of his or her spouse.
To determine the applicable civil law:
- In cases where the couple has connections to more than one state, the applicable civil law is determined in line with the provisions of Regulation 650/2012. The provision contained in Article 36 comes into play where Spanish law is applicable, such that when that is the case, the existing Civil Code or autonomous civil regulations apply, depending on the specific connection the testator may or may not have had with an Autonomous Community that has its own civil law regulating the matter.
- Where successions with no foreign component are concerned, while succession is governed by the civil regulations relating to the regional citizenship the testator had at the time of death, the rights which by operation of law are attributed to the surviving spouse are governed by the same law regulating the effects of marriage, the descendants' legitimate shares always being safeguarded (Articles 16 and 9(8) of the Civil Code).
Below the rights of the surviving spouse are analysed in light of the various civil laws existing in Spain, depending on whether the testator voluntarily arranged his or her succession (most commonly by a will) or died intestate.
- If the deceased left a will:
- If the deceased has not made a will (intestate succession):
Basque Country: as regards family property, solely in respect of real estate acquired by the spouses during the marriage, both spouses or members of the non-marital partnership are heirs (Article 66 of the Basque Country Regional Civil Law Act). The surviving spouse inherits non‑family property in the absence of descendants (Articles 110 et seq. of the Basque Country Regional Civil Law Act).
Jurisdiction is held by the Court of First Instance (Juzgado de Primera Instancia) that is hearing or has heard the annulment, separation or divorce proceedings, or before which actions to dissolve the matrimonial property regime are being or have been brought for any of the reasons provided for in civil legislation (Article 807 of the Code of Civil Procedure).
In those judicial districts with specialized family law courts, the latter hear the proceedings for dissolution and liquidation of the property regime, even if the proceedings do not result from a prior annulment, separation or divorce proceeding.
In general and under our common civil system, Article 1373 of the Civil Code provides that each spouse is liable with regard to third parties for his or her own debts with his or her personal assets; if the personal property is insufficient to discharge the debts, the creditor (third-party) may request seizure of community property. However, the non-debtor spouse may request that joint property be replaced by the share held by the debtor spouse in the community of property, in which case the seizure entails the dissolution of the community of property.
A provision of similar scope is found in the Code of Civil Procedure for the purposes of enforcement when the debt is personal but the community of property must nevertheless assume liability.
Specifically, it is provided (Article 1365 of the Civil Code) that community property is used to pay the creditor (third party) for the debts incurred by a spouse: 1) in the exercise of domestic authority or in the management or disposal of community property which by law or contract belongs to him or her; and 2) in the regular exercise of his or her profession, artistic activity or trade or in the regular management of his or her personal property.
There are likewise provisions in the Commercial Code (Código de Comercio) for cases where one of the spouses is a trader.
As regards encumbrances or disposal of jointly owned property, unless separate provision has been arranged for in a pre-marital agreement, the consent of both spouses is required. If the disposal is free of charge (e.g. donation), disposal carried out by just one spouse is null and void.
Nonetheless, in the interest of security of trade, the Civil Code indicates that acts of property management and disposal of money or securities are valid when conducted by the spouse in whose name they are registered and who has possession of them.
As regards registered immoveable property, in order to register the property in the name of the married person and the acquired right in relation to the current or future rights of the community of property, the name of the spouse and the matrimonial regime must be identified for the benefit of a third party consulting the registry. If nothing is declared in the registry, a third party acting in good faith who acquires by payment property from the person who appears in the registry with authority to carry out the transfer retains ownership of the property thus acquired.
This is regulated in Articles 806 et seq. of the Code of Civil Procedure. It has the following steps:
a) Inventory drawn up of the property included in the community of property.
This can occur at the same time as the annulment, separation or divorce proceedings or the dissolution of the matrimonial property regime, even if in practice it begins once the final judgment dissolving the regime has been issued.
The request must include a proposed inventory. An appearance is made before an officer of the court (Letrado de la Administración de Justicia), during which, based on the proposal, a joint inventory is sought. If there is a dispute over an asset, a hearing is held before a judge for a ruling, which can be appealed.
To begin this step the decision dissolving the matrimonial property regime must be final. It begins with a liquidation proposal and appearance before an officer of the court in order for the spouses to reach an agreement on the payment of compensation and reimbursement due to each spouse, and the proportional division of the remainder by establishing lots.
If no agreement is reached, an estate partitioner is named to handle the division transactions. Once the proposal has been made, the spouses can accept or reject it; in the latter case the disagreement is resolved by court ruling, which can be appealed
c) Delivery of assets and registration in the property register.
Once the liquidation transactions are finally approved and the lots established, the officer of the court is responsible for delivering the assets and sending property titles to each spouse.
In addition to this procedure, there is another, simpler procedure under which liquidation takes place by mutual agreement of the spouses or between the surviving spouse and the heirs of the predeceased spouse, pursuant to the rules of the Civil Code and before a notary.
In both cases, if there is immoveable property among the assets subject to liquidation, a copy of the decree approving the division transactions, the judgment establishing the division of assets or the notarised public document on the liquidation of the community of property may be recorded in the property register.
Acts and contracts related to ownership and other rights in rem in immoveable property may be recorded in the property register. They must be authorised in a public document, which is brought to the registry in whose territorial jurisdiction the immoveable property is located, and the corresponding taxes and fees paid.
The document must be presented in authentic form and accompanied by certification from the Spanish civil registry (if the marriage was registered there) acknowledging dissolution of the matrimonial property regime for it to be effective with regard to third parties. If the original document was issued outside the country, it must be duly legalised and, should the registrar request it, translated. This regime is not applicable to legal documents and judicial decisions covered by European regulations, which circulate pursuant to the relevant provisions.
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