Marital Property or Separation of Property in Marriage
The matrimonial property regimes are regulated in Title 3 Book IV of the Civil Code, from article 1315 to 1444 inclusive.
The matrimonial property regime is the set of rules governing the economic relations existing between the spouses and between the spouses and the others.
These rules will be contained in the agreements reached by the spouses in the marriage contracts if they have been granted, and failing this, the regulation contained in the Civil Code or, in the case of regions with Foral Law, by the corresponding Compilations of Civil Law specific to each Community, will be applicable.
The spouses are completely free to regulate their matrimonial property regime, and may introduce the clauses that best suit their particular situation, provided that they are not contrary to the law, or adopt one of the legally regulated regimes.
In the event that the spouses do not enter into marriage contracts in which they establish a different regime, in the areas where common law governs (i.e. except in the Basque Country, Catalonia, the Balearic Islands, Galicia, Navarre and Aragon, regions in which the specific regulation on the matter will have to be taken into account), the legal regime of community of property will be applied.
Types of matrimonial property regimes
- Community of Profits: its regulation is found in Art. 1344 et seq. of the Civil Code.
By means of the community of property, the earnings or profits obtained indistinctly by either of the spouses become common for the spouses, which will be attributed to them in half upon dissolution of the community of property.
Alongside the community property, there may coexist separate property, which belongs exclusively to one of the spouses.
Such separate property, which does not form part of the community of property, consists of the property owned by the parties prior to the conclusion of the marriage, which is acquired by donation or by virtue of inheritance.
However, it should be borne in mind that the income that may be derived from these private assets, for the duration of the marriage, is in the nature of community property (e.g. rental of a house owned by one of the spouses. The property belongs to the spouse to whom it belongs, but the income received corresponds 50% to both spouses). - Separation of property: this is regulated in Articles 1435 et seq. of the Civil Code.
In the separation of property regime, each spouse will own the assets that he/she had at the initial moment of the separation and those that he/she later acquires by any title. Likewise, the administration, enjoyment and free disposal of such assets shall correspond to each spouse.
In other words, we are dealing with a regime in which the assets will belong exclusively to the spouse who owns them, without it being possible to attribute the yield that could be obtained from them to the other spouse.
This regime does not mean that everything is individually owned and that nothing can be shared in the marriage, as the couple may decide to share certain assets, such as the ownership of the family home, but in this case we would be dealing with a co-ownership and not with a community property.
This is the regime that, in the absence of an express agreement between the spouses, applies in Catalonia, the Balearic Islands and the Valencian Community. - Profit-sharing regime: this is regulated in Article 1411 et seq. of the Civil Code.
In the participation regime, each of the spouses acquires the right to participate in the profits obtained by his/her partner during the time that this regime has been in force.
In this case, each of the spouses administers his/her property during the marriage, and when the relationship is terminated, a community of property is formed in such a way that the profits obtained during the time they were married are compensated.
In other words, only when the economic regime is terminated is there an adjustment of all accounts between the spouses, by virtue of which the gains of both spouses are shared equally.
At G. Elías y Muñoz Abogados, we have family lawyers in Madrid specialists dedicated exclusively to the practice of Family Law who will provide you with comprehensive advice on everything related to this matter, informing you of all the rights and obligations that correspond to you and advising you on the most appropriate way to proceed in each case.
You can make an appointment at any of our offices in Madrid, Majadahonda or Pozuelo de Alarcón or if you prefer, you can speak to one of our lawyers specialising in Family Law by calling 91.571.17.87 from 9am to 2pm and from 4pm to 8pm, who will advise you on the steps to follow in your specific case.
Our lawyers specialised in family law with extensive experience in matrimonial property regimes can offer you our professional services in all matters related to matrimonial property regimes.
If you wish, in addition to being attended in our Law Firm in Madrid, we offer you the possibility of our Lawyers attending you in our offices in Pozuelo de Alarcón and Majadahonda.
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