Property and marriage or divorce

Filed under : Civil Law, Conveyancing & Property Law, Family Law, Property
De Cotta Law Conveyancing

Many people will remember signing their Deeds, (Escritura), for their property at the Notary.  Spanish Notaries are officials of the state and have extensive experience and knowledge.

Sometimes the Notary asks a couple about their “matrimonial regime” and this can cause confusion with English and British nationals who are not aware of the concept. it is more familiar in Holland, Belgium and Spain.

This is because it is a civil law concept familiar to the rest of Europe but not applied in English common law or matrimonial law.   In Spain the couple can elect to hold their assets separately or as “gananciales”, Community of Property.  The default or common regime in Spain is gananciales. In Holland the basic matrimonial regime is also community of property.

Sometimes a married person has purchased in Spain after marriage but registered in their own personal name rather than jointly.  Where this property is the matrimonial home and the marriage has been a long one, the English Court would take it into consideration when talking about a division of assets. This brings the English regime on divorce closer to that of Community of Property or gananciales where assets acquired during marriage are divided 50/50. Therefore if a divorce takes place it can be important to establish how the property is registered to ensure that the division of assets is fair and correct.

Similarly a pre-nuptial contract, generally signed before a Notary, is considered as binding in Spain.  In English law it is one of the factors taken into account on divorce but can be overturned depending on the individual circumstances. A case known as the Radmacher case has made it more likely that a pre-nuptial contract will be recognised in England provided the parties had separate legal representation and the contract is fair on both parties. Holland recognizes a pre-nuptial contract to protect assets. In every case for European or indeed international clients buying property in Spain it is advisable to take advice either on purchase or if you later wish to transfer or protect assets.

Also it is possible to convert sole ownership to joint ownership at any stage. It needs to be shown that the couple are able to do this in accordance with the law applied to their marriage. If you are not sure about the legal situation with property whether on marriage, prior to marriage or on divorce it is best to seek legal advice from private international lawyers with experience in dealing with both property and matrimonial matters.

For more information contact De Cotta Law on [email protected] or telephone 952 527014