The purpose of the marriage contracts is to establish the economic regime by which the spouses or future spouses must be governed during their matrimonial life. Likewise, they will also be able to determine in them as many stipulations as they consider necessary and, even, to establish pacts for the case that a matrimonial breakup takes place.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
When two people get married, they should know that as a result, their economic relations will be intensely affected, since the law determines that every marriage will be governed by a matrimonial property regime, that is to say, by specific rules that will determine how their assets are administered, to whom the assets they owned before the marriage belong, as well as those they acquire during the marriage and, even, the rights of each of them in case of dissolution of the marriage bond.
In the area of Catalan civil law, which is the area of activity of this notary's office, the following regimes can be identified:
A) THE SEPARATION OF PROPERTY REGIME:
In it, each spouse has the ownership, enjoyment, administration and free disposal of all his or her property, with the only limits established by law. Each spouse retains ownership of the assets that belonged to him/her before the marriage, as well as those acquired during the marriage. The onerous acquisitions(example a purchase and sale of a real estate) that take place during the marriage, belong to the spouse who is the owner.
<ejemplo>Así pues, por ejemplo, si dos personas están casadas en separación de bienes y uno de ellos adquiere una segunda residencia, constando adquirida e inscrita sólo a favor de un cónyuge, dicha vivienda le pertenece sólo a él o ella.<ejemplo>
B) THE PROFIT SHARING REGIME:
In this regime, each spouse has the ownership, enjoyment, administration and free disposition of all his/her property, with the only limits established by law. And unlike the previous one, in case the marriage bond is extinguished (for example, in case of divorce), each spouse will have the right to participate in the patrimonial increase obtained by the other during the time that this regime has been in force. Thus, when the regime is extinguished, the difference between the initial patrimony and the final patrimony of each of the spouses will be made and, in view of the result obtained:
C) THE COMMUNITY OF PROPERTY REGIME:
Its main characteristic is that the profits obtained indistinctly by any of the spouses and the assets to which such character is conferred become common.
<ejemplo>Así pues, por ejemplo, si el Sr. Juan y la Sra. María, al contraer matrimonio, deciden regir el mismo por este sistema, si durante la unión la Sra. María, como exitosa abogada, consigue reunir 500.000€ derivados de su actividad profesional, que se destinan al ahorro familiar, si finalmente se rompiera el vínculo matrimonial, la mitad de ese importe correspondería al Sr. Juan.<ejemplo>
D) OTHER REGIMES:
Finally, it should also be noted that Catalan law provides for other matrimonial property regimes specific to certain specific geographical areas of Catalonia, such as, for example, the partnership for purchases and improvements, the "agermanament" or half and half pact or the so-called "pacto de convivença o mitja guadanyeria" (cohabitation pact).
In any case, as already indicated at the beginning of this question, these matrimonial property regimes correspond to those provided for in Catalan legislation. However, in the event that the contracting parties have another civil status, the regimes provided for in other regional or autonomous civil regulations or, if applicable, those provided for in the common Civil Law could be applicable to them.
In accordance with Spanish and Catalan civil law, the matrimonial property regime will always be determined by choice of the spouses, for which purpose they must execute a marriage contract.
In case of not making an express choice by means of a marriage contract, in such a case the spouses will apply the matrimonial property regime provided for in a supplementary way in the competent civil legislation. For example, the supplementary legal regime foreseen in the Catalan regulation, that is, the regime of separation of property. Whereas, in Madrid or Andalusia, for example, the supplementary legal regime provided for in the Civil Code is the community property regime.
Below is a table detailing the supplementary legal regime in each territory, i.e., the one that will be applied in the event that the spouses do not expressly agree on this matter:
Simply, as clarification, I have to comment that, with regard to the Aragonese conjugal consortium, in the same one a presumption of community to all the goods acquired in the marriage is established, with which, this regime is quite similar to the community of acquisitions, as it happens with the so-called Navarrese foral communication, in which its concrete characteristics also assimilate it to a regime of community of acquisitions. For more information about a specific matrimonial property regime, my best advice would be to go to a competent notary in the specific territory, as he/she will surely be familiar with all the particularities of the same.
In the event that the parties are domiciled in different Autonomous Communities and, in view of this, the legal regime applicable to their marriage is different(which would happen, for example, if two persons were married, one residing in Madrid and the other in Barcelona, since in the case of Madrid the applicable legal regime would be that of community property, while in the case of Barcelona, it would be that of separation of property), in such case, to determine which matrimonial property regime, the provisions of Article 9.2 of the Civil Code, which establishes that, in case the law applicable to the contracting parties is not the same, the matrimonial property regime will be determined as follows:
As has just been indicated, the marital contracts are a pact or agreement reached by the spouses (or future spouses, as will be seen), by virtue of which they establish the matrimonial property regime that will govern their union.
Likewise, in these capitulations, the spouses or future spouses may also make gifts to each other, establish any other lawful stipulations and covenants that they deem convenient, and even reach agreements on how an eventual marital breakdown should be articulated.
No. Regarding the custody of the children, the Notary is not competent to regulate or decide on matters of filiation or custody; it will be the judge who resolves the separation or divorce who will decide on these matters.
Marriage contracts are executed in a public deed authorized before a Notary Public.
Marriage contracts may be granted:
Marriage contracts may be executed by all persons who are already married or, failing that, by those who have the capacity to validly contract a future marriage.
Indeed, in order for the marital contracts to have effects and be enforceable against third parties, they must be registered in the Civil Registry, as well as, if applicable, in other public registries(for example, in the Land Registry if there has been a modification of the regime that affects the nature of a specific real estate property, or in the Commercial Registry if one of the spouses is a sole proprietorship).
Of course, the matrimonial chapters can be modified, granting a new public deed to that effect, but for this, as it cannot be otherwise, it will be necessary the consent of both spouses or future spouses.
In this case, it will again be necessary to register the modification of the chapters in the corresponding public registries in order for this variation to be effective against third parties.
Finally, it should be noted that, in any case, the modification of the matrimonial property regime will not affect the rights acquired by third parties prior to such modification.
Of course, if both spouses wish, they can execute a new public deed establishing this.
Indeed, it is possible that, in the marital contracts, in addition to choosing the economic regime of the marriage, the spouses or future spouses make agreements on how their relations should be articulated and how their assets should be distributed in the event that, eventually, in the future, this marital union is broken.
In such a case, interested parties should take into account the following issues established by law:
Likewise, it is necessary to indicate that, if subsequently, the marital breakdown occurs, and any of the spouses intends to enforce the agreements reached, they must take into account that the law establishes the following issues:
In order to sign a prenuptial agreement, it will be necessary to have a date for the marriage and to provide only the identity documents of both parties.
In any case, given the patrimonial transcendence of the document, it is recommended to the parties that, if they consider it convenient, they consult previously this matter with a lawyer specialized in the matter, so that he/she can advise them adequately.
In this case, I would also like to point out that finally, when the marriage has already been celebrated, the contracting parties must bring to the Notary's office the literal Certificate of registration of the Civil Registry in which the marriage is recorded, from which moment the authentic copy of the deed of capitulations can be issued.
The future spouses must go to the notary with their original and valid DNI. If any of them is a foreigner, then he/she must present his/her original and valid passport.
The spouses must present to the notary their original and valid DNI. If one of them is a foreigner, then he/she must present his/her original and valid passport.
It will be essential that they provide the literal certificate of marriage at the Civil Registry (the issuance of such certificate cannot exceed 3 months of antiquity).
