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 the exercise of their freedom of contract, spouses have the authority to determine the property regime that will govern their assets by entering into a prenuptial agreement. However, in the absence of such an agreement, the legal system provides rules for determining the applicable law, which vary substantially depending on the date of the marriage:
I. Marriages Between Spanish Citizens (No International Element).
In the event that both spouses are Spanish nationals, the applicable provision is Article 9.2 of the Civil Code, which establishes an order of preference based on the following connecting factors:
II. Marriages solemnized on or after January 29, 2019 (With “International Note”)
As of this date, Regulation (EU) 2016/1103 takes effect, unifying criteria at the European level and prioritizing the reality of cohabitation over nationality:
It is important to note that different civil legal systems coexist in Spain. Determining the applicable law using the above criteria results in the application of a specific supplementary law:
Warning! Prior to that date—January 29, 2019—the European Regulation is not retroactive. Therefore, we must refer to the conflict-of-laws rules of our domestic law, specifically Article 9.2 of the Civil Code (even if there is an international element to the marriage).
Article 33 of Regulation (EU) 2016/1103 serves as a legal “bridge” to our domestic legal system, establishing that, when the Regulation designates Spanish law as the applicable law, it is our own national rules that determine which specific branch of civil law (the Common Law or one of the Regional Laws) applies.
In this regard, the reference leads us directly to Articles 14 and 16 of the Civil Code, which establish that the decisive connecting factor is the spouses’ civil domicile; thus, the European Regulation respects Spain’s pluralistic legal system, allowing civil domicile—whether acquired by birth, choice, or residence—to prevail in determining whether the marriage is subject to the community property regime or the regional separate property regime, thereby resolving the internal conflict of laws.
Informational Note: Given the technical complexity involved in determining the applicable law and its effects on the disposition of assets and liability toward third parties, it is highly recommended to seek legal advice in advance (which is essential when there is an international element in the marriage) and to execute a prenuptial agreement to ensure full certainty regarding the marital property regime.
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.
In a globalized world, it is common for spouses to move to different countries during the course of their marriage. Under Regulation (EU) 2016/1103, these moves can create uncertainty regarding the law governing their assets, especially in cases of marital crisis or death.
To prevent the unintended application of unwanted foreign laws, the Regulation allows for the execution of agreements on the choice of applicable law.
Spouses or prospective spouses have the right to expressly designate the law applicable to their property regime, provided that:
The execution of a notarized prenuptial agreement that expressly includes the choice of applicable law pursuant to Article 22 of Regulation (EU) 2016/1103 provides the spouses with the highest degree of legal certainty through the following effects:
A) The Marital Property Regime and Changes of Residence
The general rule under the European Regulation provides that the property regime may be altered if the spouses transfer their habitual residence to another Member State for an extended period (in the absence of an agreement). By choosing the applicable law, the spouses ensure that their property regime (whether the regional Separation of Property regime or the common Community Property regime) remains unchanged and unaffected by future changes of residence. This “freezing” of the applicable law prevents a professional or personal move abroad from automatically triggering the application of a legal regime that is unfamiliar to them or contrary to their interests.
B) Preventive Legal Certainty and Procedural Efficiency
The definitive determination of the applicable law eliminates any uncertainty regarding interpretation in cases of marital crisis or succession upon death. Since the chosen law is set forth in an authentic document, it avoids the need to adduce evidence of foreign law or prepare complex reports to determine residence, thereby significantly simplifying any future judicial or extrajudicial proceedings.
C) Principle of Universality and Unity of the System
The choice of law ensures that a single legal system governs the entire marital estate, regardless of the nature of the assets or their geographic location (principle of unity). This is crucial for married couples with investments or property in different countries: it prevents the legal fragmentation that would result if real estate in one country were governed by one set of laws and bank accounts in another country by a different set. The chosen law applies to all of the marriage’s assets and liabilities.
D) Protection of Good Faith and Enforceability Against Third Parties
The notarization of the choice of law, together with its mandatory registration, grants the regime erga omnes protection (effective against third parties and not merely between spouses). The concept of enforceability against third parties implies that others are required to recognize it.
This ensures transparency in the couple’s financial relationships, protecting both the spouses’ interests and the legal certainty of their transactions vis-à-vis creditors and third parties acting in good faith.
That's right. Regulation (EU) No. 1259/2010 (Rome III) prioritizes the principle of party autonomy, allowing spouses to choose the law that will govern their separation or divorce, thereby breaking with the automatic application of the law of the country of residence (which might be unfamiliar or less favorable).
A) The Nationality Law (of either spouse): Spouses may designate the law of the country of which either of them is a national at the time of the agreement. This option ensures that the couple’s initial legal status remains unchanged, regardless of where they decide to live.
B) The Law of Habitual Residence (current or previous): It is possible to choose either the law of the State where the spouses have their habitual residence at the time of signing, or that of their last common place of residence if one of them still resides there.
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).
In order for the chosen economic regime to be fully enforceable in Spain, the deed must be registered with the Civil Registry where the marriage is recorded.
A) If the marriage took place in Spain: The Spanish Civil Registry is responsible for recording the existence of the prenuptial agreement by means of a marginal note on the marriage record.
B) If the marriage took place abroad: In order for a prenuptial agreement executed before a Spanish notary to be fully enforceable here, the marriage must first be registered or recorded in the Central Civil Registry.
Warning!: Are prenuptial agreements valid if they are not registered with the Civil Registry?
Yes, prenuptial agreements are fully valid and binding between spouses from the moment they are signed before a notary. However, their effectiveness is limited with respect to third parties (banks, creditors, registries): For the chosen property regime to be enforceable (that is, for others to be required to recognize it), it must be registered with the Civil Registry.
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.
Outside our business hours, you can also contact us. The corresponding department will get back to you as soon as possible:
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).
