Changing the matrimonial property regime from community of property to separation of property - is it possible?

What types of matrimonial property regime are there?

When two people decide to get married, it is advisable to choose the matrimonial property regime in which the distribution of assets will be established in the event of divorce.

The community of property, the separation of property and the participation regime are the three options to be chosen by the spouses in Spain.

Although it is true that all three possibilities exist, the default regime applied in Spain, unless otherwise stated, is the regime of sociedad de gananciales. Let us see what each one consists of:

i) Community of property

The community of acquisitions refers to the economic model by which a marriage is governed in terms of the disposition of wealth as a common good for the spouses, which can be disposed of during the marriage, or liquidated in equal shares, in a divorce proceeding as stipulated in the marriage contract.

If you would like to know more about the concept of community of property, we explain the main features in our blog post.

ii) Separation of property

Separation of property is the matrimonial property regime whereby each property or intangible asset of the spouses is differentiated and belongs only to the person to whom it is registered.

This does not mean that common property acquired by both parties during the marriage cannot be disposed of, but it is advisable that the acquisitions receive joint ownership, so that, in case of divorce, it is easier to establish the liquidation of the common property.

Even if the spouses do not have joint earnings, the spouses have the obligation to respond to debts or requests for payment jointly, understood as contributions to the domicile of both spouses and the maintenance of the first-born children. Separation of property can be established by marriage contracts.

iii) Participation regime

This is a regime in which each spouse acquires the right to share in the profits obtained by the spouse during the period in which it has been in force.

How can I change the matrimonial property regime in which I am married?

If you are wondering whether it is possible to change the matrimonial property regime after marriage, the answer is YES.

The spouses can change their property status at any time.

You can change the matrimonial property regime from community of property to separation of property and vice versa, as many times as you deem appropriate. To do this, you must go to the notary's office and present the marriage contracts in a public deed, drawn up by an expert lawyer in family law, with considerable experience in handling cases such as the present one.

From that precise moment, the community of property will be dissolved and the assets can be liquidated, if this is what is deemed appropriate.

If, after changing the matrimonial property regime, it is decided to liquidate the assets registered in the previous community of property, an inventory of the tangible and intangible assets must be made, as well as an inventory of the debts belonging to the community of property, in order to divide them between both spouses.

It is not necessary to liquidate the assets after the dissolution of the community of property regime, it can be postponed by a legally effective deed.

Are there consequences?

After the liquidation of the community of property, each spouse will be the owner of the assets and acquisitions made thereafter.

Each member of the marriage will be the owner of his/her assets and will be able to dispose of them whenever and however he/she wishes, except in the case of selling the family home, which will require the consent of the other party or, failing that, judicial authorisation.

The change of matrimonial property regime does not exempt from the payment of debts contemplated in the previous community of property. The debts incurred by each spouse must be settled by the person to whom the debt is identified.

It should be added that, even if there is a division of assets, the spouses have the obligation to support the common children and to respond to family burdens in proportion to the income received. There is also the right not to renounce the inheritance of the spouse in the event of death, always in accordance with the provisions of the will.

In short, it is advisable to opt for a regime of separation of property when you have more wealth and earnings than the other party before the marriage, when you are going to make an investment for the creation of a new business or when you have non-common children.