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Spanish matrimonial property regime

The choice of the matrimonial property regime, whether made at the time of marriage or later, will have consequences in the event of separation or divorce.

It determines the legal actions to be taken and the financial situation of the parties, depending on whether they were under a community property system or a separation of property system.

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Regime of community of property

  • The community of property regime means that the income received during the marriage is common to both spouses, as well as the payment of certain debts, such as a mortgage, even if it encumbers a private domicile of one of the parties, generating a right of credit or even a percentage right over the home if it is the family domicile.

  • In most of Spain, common law is applied and, therefore, the matrimonial property regime is the community of property regime.

Separation of property regime

  • The separation of property regime means that the spouses have separate assets and must contribute to the family’s expenses in proportion to their income.

  • In territories such as Catalonia or the Valencian Community, special matrimonial rules apply and, therefore, the separation of property is applied.

The dissolution means that from that moment onwards the spouses will operate with separate assets and, therefore, the assets will be awarded in the percentage of ownership of each of them.

Elección del régimen económico matrimonial. Paloma Zabalgo. Abogados de familia en Madrid.
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Régimen económico matrimonial. Paloma Zabalgo. Abogados de familia en Madrid.

Settlement of the community property

An uncontested divorce allows for the liquidation of the community property at the time of separation or divorce in the same Regulatory Agreement, allowing the parties, whenever possible, to dissociate themselves financially from each other.

The liquidation is carried out by means of an inventory, valuation and adjudication of the assets of each party, which are submitted for judicial approval.

 

Contentious process of liquidation of community property

If the parties do not reach an agreement on the liquidation of the community property, the Civil Procedure Act provides for a contentious judicial proceeding that may be initiated from the moment the divorce petition is admitted for processing.

This procedure consists of two phases or trials:

  • The formation of the inventory: a process in which the assets, rights and debts that make up the community of property – assets and liabilities – are determined and presented to the court. If there is a discrepancy between the parties, the corresponding trial must be held.

  • Valuation and adjudication to each party of the assets and liabilities, trying to ensure that both are equal.
 

Extinction of the community of property in a separate property regime

In a marriage in separation of property it is common that the family home has been bought by both spouses, in proindiviso, allowing the law to exercise the declaration of division of common property.

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Paloma Zabalgo
President of the Family and Inheritance Section of ICAM

University Certificate in Workplace Well-being. ICAM and Cortina Fundation – Florida University

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