Differences between the community of property regime and the separation of property regime

A wedding is a special moment in everyone's life. After all, it is about living together and sharing many things from that moment onwards. However, the economic regime of the marriage is an issue to be taken care of. In fact, more and more married couples are living under a separation of property regime. But, do you really know the difference between this system and the community property system? Here we are going to explain them to you.

What does the community of property regime consist of?

The regime of community property consists, fundamentally, in the declaration of the existence of a mass of common assets, that is to say, assets that are part of both the husband and the wife and that, therefore, are not considered to be the property of one or the other. In general, this is the system most commonly used in Spain.

However, this regime does not necessarily refer to assets that were purchased exclusively by one of the two partners before the wedding. On the other hand, it does refer to all assets acquired after the wedding and which are the result of the work and income of either of the two partners.

Therefore, when selling any property, as long as it is subject to the community property regime, it is essential that both parties give their consent. In this sense, as is evident, when a situation of divorce or separation arises, everything becomes quite complicated. The fact is that the private assets are reduced, solely and exclusively, to those that have been acquired by donation or inheritance.

There are only three ways to dissolve a matrimonial property regime. These are:

1. Marital Capitulation. This is an agreement between the husband and wife in which they agree on a different economic regime to that of community property.
2. Judicial separation of the couple. A judge will be in charge of ruling that the community property regime comes to an end even if the final divorce has not taken place.
3. Extinction of the marriage. This may occur as a result of a divorce settlement or the death of one of the spouses.

It should be noted that, except in the case of the death of either the husband or the wife, all the assets are divided 50/50 between the spouses. In other words, a marriage, in the event of dissolution, can be considered to function in the same way as a partnership or a company, provided that it is governed by the community of property regime.

What does the separation of property consist of?

Separation of property is a legal document, the validity of which must be granted by a notary, which, for practical purposes, cancels the matrimonial effects on the assets. This means that, contrary to the community of property regime, when this is in force, each of the spouses maintains their assets once they are married without any common assets between them. This is undoubtedly a very interesting option for many couples, which is why more and more are opting for it.

This implies, among other things, that only the assets of a given spouse are liable for any debts that he or she may have incurred. Therefore, even if these debts exist, the other party will not be liable for them and will not be liable for the consequences of any non-payment. This is the case except for those that do not have a specified owner, which is very unusual.

It should be noted that more and more autonomous communities are opting for this system by default. In fact, if one resides in the Valencian Community, Catalonia or the Balearic Islands and marries in any of them, the spouses will reside under a regime of separation of property, not community property.

Separation of property or community property?

The truth is that it depends on the case. As a general rule, the separation of property has been a formula widely used by spouses who, to a greater or lesser extent, had more or less substantial assets before getting married and who did not wish to share them in the event of separation. However, when one of the spouses did not work (e.g. housewives), it used to generate a lot of conflicts. On the other hand, in those cases in which both parties arrive at the wedding on equal financial footing, the community of property is usually more advisable.

In any case, the separation of property during the marriage is a possibility that can be carried out. In fact, it can also happen the other way around, i.e., it is possible to change from this regime to the community property regime if both parties deem it appropriate. Everything will depend, as we have already said, on each case, which also means that, on most occasions, it is best to seek the advice of a specialised lawyer.