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Economic regime of marriage

Marriage not only gives rise to a series of personal effects between the spouses, but also has significant consequences for their assets, known as the 'economic effects of marriage'.

The law establishes a number of standards to regulate these economic effects, some of which are mandatory (and cannot be modified) while others are supplementary, and may be modified as voluntarily decided by the spouses, tailored to their needs in the form of prenuptial agreements. Remember that if you have any doubts, the best course of action is to seek advice from a notary.

What are prenuptial agreements?
Do such agreements have to be registered?
What are the most common agreements?
When can prenuptial agreements be established?
Differences between National Law and Regional Law

What are prenuptial agreements?
They are the contracts that can be agreed before or after the marriage to establish the regulations that are going to govern the economic aspect of the marriage, in accordance with the law in place. In order to be valid, they must be drawn up in a public notarial instrument, with impartial advice from a notary, who must indicate the most appropriate way to reflect the will of the spouses, as well as the legally established limitations.

Do such agreements have to be registered?
The agreements must be registered at the Civil Register, together with the taking of reason of the marriage ceremony, in order to take effect before third parties.

An example of limitation of liability when requesting a credit: if the person applying for it is married under the joint property system, the communally held assets could be liable for any debt. Meanwhile, if the applicant is married under the separate assets system, then a debt may be collected only against the private assets of the spouse who owes the money, and never those of his or her partner.

What are the most common agreements?
Although such agreements may cover all manner of clauses corresponding to the marriage, and may involve not only the spouses but also parents or other individuals, they typically establish nothing more than the economic marital regime.

The fiancés or spouses may opt for one of the regimes governed by the Civil Code, or tailor their own marital regime, subject to no other limitations than the requirement that their equal rights be guaranteed.

  • Spanish National Law establishes that the joint asset regime will apply not only if it has been agreed in a contract, but also in the event of marriage without any prenuptial agreement. Under this system all assets acquired by both spouses are communally owned, whether they were as consideration or in payment for their work, except for exclusively acquired assets which are the sole property of each of the spouses, and those already owned before marriage, inheritances and donations.
  • The separation of property regime is based on an absolute independence of the spouses in the economic plane, although when it comes to dispose of the family dwelling it is necessary to have the other spouse. In order to establish the separate property regime under Spanish National Law, then a contract must be signed, although in Catalonia, for example, in the absence of agreement, this is the economic system that will always govern the marriage.
  • The participation regime is applied only when it is registered at the Civil Register by the spouses by means of a contract. It functions as a separate asset regime, although when it is dissolved each spouse shares with the other any increase or reduction in their respective assets.

When can prenuptial agreements be established?
They can be arranged before or even after marriage, and as often as desired.

  • Before marriageIf arranged beforehand, the economic regime agreed will take effect only once the marriage ceremony is performed, which must be within one year.

  • After marriage: The effects will begin at the point at which the agreement is signed, although a supplementary legal regime will have applied from the marriage ceremony up until the execution of the agreement (generally, the joint assets system), and this will then need to be settled.

Differences between National Law and Regional Law
Spain has a National Law system that applies throughout most of the country, and Regional Laws specific to certain regions. The areas where these special marital standards apply are: Aragon, Balearic Islands, Catalonia, Navarre, Valencia and a part of the province of Biscay.

In Catalonia and the Balearic Islands the system is that, in the absence of an agreement, the separate asset regime will apply, while in Biscay, in the absence of a pact, that of formal communication, by virtue of which the assets that each of them had before and during the marriage, including those that had been inherited or given away, will be made common, although, in marriage, only There is a 'potential communication' that is not consolidated until the dissolution of marriage.


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