How to separate property

As you may well know, the Civil Code in force in Spain provides that couples can get married using two different regimes: community property and separation of property. In this article we would like to focus on the latter in order to explain what it is and what steps must be followed to carry it out.

What is the separation of property regime?

Separation of property is essentially a matrimonial property regime. Its purpose is to govern the common economy of a couple who plan to marry in a short period of time or who have already done so. In autonomous communities such as, for example, Catalonia, Valencia and the Balearic Islands, it is the economic regime chosen by default in the event that no marriage contracts have been drawn up. In the rest, it is the community property regime. 

In general, the separation of property regime is the one chosen by couples whose partners want to have the guarantee that, in the event of divorce, they will keep all their own assets. This is because it covers any property, regardless of whether it is personal or real, which was acquired, donated or inherited before or during the marriage by one spouse. 

Undoubtedly, the choice of this property regime often causes controversy within the couple as the background of the love marriage is slightly lost. However, that is a personal question which we will not go into in depth here. 

However, the separation of property regime, as with the community of property regime, provides that both spouses have to cooperate in the same way in the payment of the burdens inherent to any marital union. In fact, when there is no agreement between the spouses, they will have to do so with their personal economic resources, even if the management and ownership corresponds to only one of them. 

In this sense, domestic work has been understood, for some years now, as a contribution to the burden of marriage. This means that it confers the right to compensation in the event of divorce or separation. This is determined by the competent court. 

If, despite the separation of property, one of the spouses manages and administers the property of the other spouse, his/her responsibilities and obligations are identical to those of a trustee. This means that he/she does not have to account for the fruits consumed and received by such administration and management, unless it can be proved that they were invested in items not related to the burdens of the marital union. 

In the event that it is impossible to prove ownership of a right or property by one of the spouses, this will, in the event of separation or divorce, become the property of both spouses in equal shares. 

It should also not be forgotten that, as a general rule, the family home is considered to be the property of both parties, even if there is a separation of property regime. This is the reason why, for its sale, the signature and agreement of both spouses is usually necessary. 

Marital contracts

Earlier we referred to a really important concept within the scope of the separation of property regime. Specifically, it was that of marriage contracts. 

Capitulaciones matrimoniales is the name of a public document that is executed before a notary and that is indispensable to opt for the separation of property regime in most of the Spanish autonomous communities. It can be executed before or during the marriage. 

This document must reflect a pact of a preventive nature between both spouses that foresees a possible future crisis situation that leads to the decision to divorce. This, of course, may happen tomorrow or may never happen at all. If it is signed and notarised when the marriage is already in force, its purpose is to replace, amend or stipulate the matrimonial property regime applicable from that time onwards. 

However, the validity of the matrimonial property agreement is not indefinite. When they are drawn up and signed before a notary, the couple, if they are not married, undertake to enter into marriage within a maximum period of one year. If they fail to do so, the document becomes null and void and must be re-executed. 

When can the existence of the separation of property regime between the spouses be taken for granted?

Article 1435 of the Civil Code establishes the moment at which a separation of property regime is deemed to exist within a marriage. Specifically, it stipulates the following:

1. Separation of property shall exist when both spouses have agreed, in their marriage contracts, that there shall be no community of property between them. 
2. If it is mutually agreed between them. 
3. If the participation regime or the community of property is terminated within the marriage without the dissolution of the marriage. 

Necessary steps to carry out the separation of assets

By way of summary and in order to facilitate the understanding of what has already been said, we will now summarise the steps to be taken in order to implement the separation of property regime in your marriage:

1. Contact a notary's office and, with the help of a specialised lawyer, draw up the marriage contract. 
2. You should submit the document to the notary in public and, if you have not yet married your partner, do so within 12 months so that it does not lose its validity. 
3. Register together with your partner in the civil registry under the separation of property regime. 

Important tips for undertaking the separation of property

If done before marriage

This is the ideal option as it is less problematic. In the marriage settlement deed, all details regarding the current and future property of both partners should be specified. Care must be taken in this respect as anything not reflected can lead to litigation in the event of separation or divorce.

If it takes place after marriage

This point is more problematic because it requires the agreement of both spouses and is not always the case. In addition, it is possible that one of them may request the liquidation of the assets existing jointly to date. This is not very common, but the Civil Code provides for such a right. 

In either case, the couple should make an analysis of each other's economic activity and the role they will play in the marriage. For example, one of you may give up, even temporarily, your professional career in order to take care of your children together, which could make a separation of property regime detrimental to you. It is also possible that you both previously owned exclusive property, in which case it would be beneficial for you as you would not risk having to share it in the event of divorce. 

We hope to have been of help and to have resolved your doubts in this regard. If you have any doubts, please contact G. Elías y Muñoz Abogados, and our lawyers specialising in civil law in Madrid will attend to you with the utmost professionalism that this type of case requires..