1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
For marriages concluded until 28 January 2019, Spanish national rules apply. The effects of marriage are governed by the common personal law of the spouses (determined by nationality and, if both of the spouses are Spanish, also by “vecindad civil”, which determines which of the various Spanish systems could apply) at the time the marriage was entered into. In the absence of such law, they are governed by the personal law or the law of the habitual residence of either of the spouses, as agreed by both spouses in an authentic instrument prior to the celebration of the marriage. If they have made no such choice of law, the effects of marriage are governed by the law of their common habitual residence immediately after the celebration of the marriage or, if there is no such residence, by the law of the place in which the marriage was celebrated (Art. 9 para. 2 CC).
Where it is not possible to determine the applicable law (i.e. for spouses with different vecindad civil who have made no agreement prior to the celebration of the marriage, who do not have a common habitual residence after the marriage and who have entered into marriage abroad), the conflict rule for marriages between Spaniards applies (Art. 16 para. 3 CC).
Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.
In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.
- The spouses’ first common habitual residence after the conclusion of the marriage.
- Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
- Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.
By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
Until 28 January 2019, only if the spouses are of different nationalities do they have a free choice of law. In accordance with the provisions described in 1.1, they may choose the law of either contracting spouse (i.e. the personal law of either of the spouses – see above – or the law of the habitual residence of either of the spouses at the time of the celebration of the marriage) (Art. 9 para. 2 CC).
Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23, so that formal requirement means that an authentic notarial act is mandatory.
Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.
