Separation of property: Advantages for divorce, inheritance and widowhood

Separation of property allows the spouses' assets to be separated during the marriage. Thus, each can administer and manage it as he or she wishes without the permission or consent of the other. This does not mean that they cannot share property. Here we would like to tell you about the advantages in case of divorce, inheritance and widowhood.

What is separation of property?

Article 1437 defines this property regime as one that allows each spouse to administer, enjoy and manage independently of the other the property acquired before and during the marriage. It therefore generates two distinct estates. In most cases, it is necessary to grant marital contracts in order for it to be applied. This is the case except for residents in the Valencian Community, Catalonia and the Balearic Islands, where it is the subsidiary regime.

Generally, this is the preferred option for marriages in which one of the spouses, due to his/her commercial or professional activity, does not want the risks associated with it to end up damaging the assets of the other. There are, of course, many other cases.

How to separate property?

The first step is always to draw up the marriage contract. This is a document in which the assets owned by each of the spouses are set out in detail. At this point, both spouses must contact a notary, who will be responsible for requesting the marriage contracts. He or she will then proceed to register the new economic regime in the Civil Registry.

As we said before, this matrimonial property regime does not prevent the spouses from acquiring assets and incurring debts jointly. In that case, both will be liable for 50% and for their payment and cancellation. They are also obliged to contribute equally to the support of family expenses.

On the other hand, we have to say that this regime is applied directly without the need for marriage contracts in the case of:

• The spouses marry in an autonomous community in which it is a subsidiary regime and the marriage does not specify the stipulation of another regime (e.g. Catalonia, Balearic Islands and Valencia).
• The spouses agree not to submit to the community of property regime but do not specify which one they wish to apply.
• The spouses extinguish the community of property regime or the participation regime. Also if there is a separation between the spouses. In this case, the fact that they reconcile in the future will not in itself serve to restore the previous matrimonial property regime.

How to separate property if you are married?

Article 1325 of the Civil Code specifies that, by means of marriage contracts, the spouses may replace or modify the property regime established at the time of marriage. The process to be followed is practically identical to the previous one. In other words, the first step is to draw up the document of the marriage contract, preferably with the help of a lawyer. Then it is time to contact a notary.

The difference is that, if one comes from a community of property regime, it may be necessary to make an award between the spouses. For this, it is then necessary to settle the taxes and to adjust the registration of the property, which can involve a relatively large investment. That is why we recommend that, if possible, you take this regime at the time of marriage and not afterwards.

How much does it cost to separate property?

The process itself is not expensive. On average, it costs between €40 and €70 to process the marriage settlement document. The problem, as mentioned above, is if there are already assets to liquidate as a result of having been married in community of property. In this case, paying the taxes and changing the registry title can cost considerably more.

How is the process of buying a home in a separation of property regime?

There are two alternatives. The first is that one of the spouses acquires it himself/herself. In that case, as there are separate estates, he or she does not have to ask permission or share ownership with the other spouse. The other is that they decide to buy the property together. The Civil Code states that they can do so without any problems and share ownership as if the purchase had been made before the marriage.

Advantages of the separation of property regime

Generally speaking, this economic regime offers a number of advantages to spouses who opt for it. Let's take a look at them:

• The most secure matrimonial property regime. The reason for this is that it restricts the risk that debts incurred by one spouse may affect the other spouse's assets.
• It provides greater freedom since, thanks to it, each of the spouses separately can carry out acts of free disposal without having to request the consent of his/her partner.
• If liquidation is necessary due to separation, divorce or any other reason, the process is much simpler and quicker.

All of this has made this matrimonial property regime the preferred option for those who have a significant amount of assets before getting married or for those who carry out risky professional and economic activities.

However, we cannot ignore the fact that, in certain situations, it also has some disadvantages to be taken into account. For example, this regime is often detrimental to the spouse who takes care of the household chores. It is particularly burdensome for him or her when he or she gives up his or her professional occupation to take care of the children, for example.
It is true that, since the amendment of Article 1438 of the Civil Code, domestic work is considered as a contribution to family expenses and therefore entitles the other spouse to compensation in the event of separation or divorce, which is not incompatible with the compensatory pension.

There is also the problem of lack of solidarity. In many cases, one of the spouses has a much greater financial capacity than the other, but his or her contribution to the family expenses is equal.

Divorce with separation of property

Obviously, the process of divorcing a couple is much simpler when, at the time of marriage or subsequently, they opted for this economic regime. The reason? The liquidation of the assets is as simple as turning to the marriage settlement document and checking what belongs to each of them. In fact, it is drawn up for the purpose of establishing the consequences of a possible break-up.

However, there are nuances. For example, if during the marriage both spouses have acquired one or more properties on a 50/50 basis, the liquidation will have to be carried out on them in the terms that are agreed through the regulatory agreement or that are decided by the judge.

Special mention should be made of the case where there are children in common. In this case, even if the family home belongs exclusively to one of the spouses (the man, for example), the judge may decide that the usufruct of the home belongs to the woman if she is granted custody of the children.

Separation of property and widowhood

The death of one of the spouses when married under this regime does not affect the other spouse's entitlement to a widow's or widower's pension. In fact, the conditions are the same:

• To have been entitled to a compensatory pension if, instead of death, a divorce had taken place. The aim is to balance out the financial disruption that has occurred.
• Not remarrying or entering into an unmarried partnership. In either case, the widow's/widower's pension will cease to be paid.

On the other hand, a widow's/widower's pension under the separation of property regime can be paid even years after the death of the spouse if there has been a divorce.

Heirs in separation of property

By default, the surviving spouse will only inherit the deceased's property if there are no living forced heirs, regardless of whether they are ascendants or descendants. Otherwise, he/she is not entitled to receive anything with the exception of the usufruct, and only in very limited cases. This is not the case under the community of property regime, which automatically gives you 50% of your assets upon death.

This has led lawyers to strongly advise you to make a will in the event of marriage under this regime. The main reason for this is that they can use it to dispose of the one third of the improvement in favour of their spouse and thus leave him or her something in property after their death.

In short, separating assets through marriage contracts at the time of marriage or afterwards is very useful and has many advantages. Above all, because it provides much greater control and protection over the assets than the community property regime. However, it has a series of peculiarities that we have seen here that make it advisable to consult a family lawyer.

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