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Can you buy a house during a divorce?

Find out what happens if you buy a house during divorce!

Family Law
Can you buy a house during a divorce?

The answer to this question is simple: yes, but a series of factors must be taken into account.

Before analysing these factors, you should bear in mind that if there is still no final judgement, the divorce has not taken place, as stated in article 83.2 of the Civil Code: The effects of the marital separation will be produced from the finality of the judgement or decree that so declares it or from the manifestation of the consent of both spouses granted in a public deed in accordance with the provisions of article 82.

What should you consider when buying a house during a divorce?

In Spain there are two matrimonial property regimes: community of property and separation of property. These regimes may be chosen by the spouses, as established in the marriage contracts, or not. In the latter case, the community of property regime would be applied by default.

Depending on the Autonomous Community in which we find ourselves, the matrimonial property regime may be one or the other. For example, in Catalonia, if the spouses do not prepare marriage contracts, the separation of property regime will be applied, unlike what happens in Andalusia or the Valencian Community. Therefore, it is important that you know whether or not you did or did not grant the marital contracts.

If you do not have a copy of the deed of capitulations, but you remember which notary did it, you can go to him/her to get another one. If not, you can also go to the nearest registry office and ask for this information.

How does the liquidation of the matrimonial property regime affect the purchase of a house?

One of the effects of divorce, as reflected in art. 90 of the Civil Code, is the liquidation of the matrimonial property regime. However, this liquidation can take place at any time during the divorce. Depending on whether it takes place before or after the acquisition of a property or any other asset, the effects are different, and it also depends on the economic regime in question.

Taking these factors into account, we are going to explain each of the possible situations in which you could find yourself:

- Married in community of property without liquidation: If you married under the community of property regime, you should know that this is characterised by the fact that all the assets become common for both parties and that upon dissolution each party will take half (art. 1344 Civil Code). As we have explained above, until the liquidation takes place, this regime will remain in force. Therefore, the purchase of a property will be understood to be purchased for the community of property owners regardless of who makes the purchase. Therefore, I would not advise you to buy a property in this situation if you intend to have full private ownership. However, if you have done so, the solution I would offer would be for you to prove that the property was purchased with your private money, as you would then have a claim against the community of property owners, which you could collect in cash and up to date or, as we are more interested in the matter at hand, in the full ownership of the property upon dissolution of the community of property owners.

- Married in community of property with liquidation: In this case the procedure is simpler, because if the community of property has been dissolved, there is no danger in the acquisition of the property.

- Married in separation of property with or without liquidation: The difference between the separation of property and the community of property is that there is no community of property, that is to say, whatever each of the spouses acquires is theirs, regardless of when the purchase takes place. In this case, therefore, the purchase of the property would belong at all times to the one who paid for it, thus presenting fewer problems and making the purchase more secure.

Surely another question you may be asking yourself is what taxes are associated with this type of operation.

As an extra recommendation you have to take into account that you will not pay the same taxes for buying a new property as a second hand one, as well as the Autonomous Community in which you buy it.

Family Law

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