Pre –nuptial contracts and separation of assets

Filed under : Family Law, Financial Planning

I recently wrote about the growing recognition of pre-nuptial contracts in the English and UK courts, particularly after a Supreme Court decision in the widely reported case of a French/German couple who chose to divorce in London. However in the Spanish jurisdiction and in many other Civil Code countries a couple can make a legally binding decision to hold their assets separately either before or during their marriage. If you do not make a positive declaration of this intention in Spain then the default or standard regime between a couple will be community of property – gananciales. Some regions such as Catalunya do have separation of assets as the standard regime.

There is a common misconception that the standard regime in England is separation of assets but on divorce and after a long marriage the English divorce courts will look to grant a 50/50 split of capital and income once any children of the marriage have been provided for.

Should you be considering marrying and want to have certainty about what may happen to your property and assets in the future you can sign a Deed before a notary agreeing that you will each hold your assets separately in future. A Spanish notary is familiar with this declaration and you can ask that an Inventory be attached if you wish though it will apply to subsequent assets as well unless you agree otherwise in a subsequent deed.

Where a couple who are not Spanish want to make this declaration the notary might require a Certificate of law stating that under the law of the nationality of the couple it is possible to make this declaration. A certificate of law is not necessary if the couple do not share a nationality and are marrying in Spain with the aim of settling here.  The declaration of separation of assets is binding if there is a future disagreement over property or on separation and divorce. Some commentators say that a couple should not be thinking of the end of a relationship at the beginning! However the other view is that anything which brings certainty if the relationship does break down should be considered where appropriate.