Marital contracts are an agreement between the spouses, which can be made before or after the marriage, and whose purpose is to fix the financial regime of the marriage.
If you are thinking of getting married, have assets and do not know which regime to agree with your partner, it is important that you are well informed about the pros and cons of each regime, and the formal requirements that must be met. In this post we help you to easily find out about these issues, so that you can make the best decision.
Concept and content of the matrimonial property agreements
As we mentioned at the beginning, the marriage contracts are a pact between spouses whose possible content is established in article 1325 of the Civil Code: ‘In marriage contracts, the parties may stipulate, modify or substitute the economic regime of their marriage or any other dispositions by reason of the same’. In other words, the content of the contracts is governed by the principle of free will, ‘with no other limitations than those established by law’, as also stated in Article 1315 of the same Code.
In practice, in most cases, the spouses limit themselves to agreeing without further ado on the economic regime of their marriage, i.e. the regime to which the assets of all kinds that both spouses may acquire while they are married will be subject. They may also include other provisions such as, for example, gifts by reason of marriage.
What are the economic matrimonial property regimes in Spain?
The matrimonial property regime is the set of rules governing the assets and economic interests derived from the marriage, both for the relations of the spouses with each other, as well as in their relations with third parties.
In Spain, in the absence of an agreement between the spouses, the legal regime is that of the community of acquisitions, in which everything acquired indistinctly by either of the spouses during their life together will be acquired equally by both of them.
By contrast, in the separation of property regime, each spouse is the owner of the property he/she had at the time of marriage and of the property he/she obtains thereafter, and may freely dispose of all of it.
Finally, the participation regime is a mixture of the two previous ones: while the marriage is in force, the system is that of separation of property; and when the regime is extinguished, it is a system similar to that of the community of property.
If you are not clear about which regime you should agree in your marriage contracts, it is advisable that you consult an expert professional to make the best decision taking into account your interests and your assets.
How are the matrimonial property agreements executed?
In order for the marriage contracts to be valid, they must be recorded in a public deed executed before a notary.
As regards the time of their execution, the marriage contracts can be executed before or after the marriage:
- If they take place before marriage, they shall become effective at the time of marriage, which must take place within one year of the execution of the capitulations.
- If they are made after the marriage, they shall be effective from the moment the public deed is executed before a notary.
How are the marital contracts registered?
The marriage contract is registered at the registry office of the place where the marriage is registered. The registration of the marriage will include the granting of the marriage contract.
This is a formal requirement, for the knowledge of bona fide third parties, but not a requirement of validity, as is the execution in a public deed.
If the agreements contained in the marital contracts affect immovable property, this will also be taken into account in the land registers where such property is registered.
Finally, if one or both of the spouses is a sole proprietor, the agreements will also be registered in the corresponding Mercantile Register.
As you can see, it is very important to be well advised when choosing whether or not to enter into a marital property agreement, its content, the economic regime to be agreed, etc. It is not a simple private contract, but has to comply with a series of strict formal requirements and has important economic consequences during the life of the marriage and, more precisely, when the marriage is extinguished, either by divorce or by the death of one of the spouses.
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