3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Spouses have the right to stipulate, by means of a marriage contract, a matrimonial property regime other than the default regime of community of acquisitions.
As alternatives to the legal matrimonial property regime of community of acquisitions, Spanish law provides for a separation of property regime (régimen de separación de bienes) and a participation in acquisitions regime (régimen de participación). Under the separation of property regime (Art. 1435-1444 CC), each spouse retains what he/she brought into the marriage and becomes the sole owner of property he/she acquires during the marriage. Where it cannot be established to whom property belongs, there is a presumption of a half share for each spouse.
Under the participation in acquisitions regime (Art. 1411-1434 CC), each of the spouses retains what he/she brought into the marriage and becomes the sole owner of property he/she acquires during the marriage, but each of the spouses is entitled to a share of the acquisitions made by the other spouse while this system is in effect. These acquisitions are calculated at the time of dissolution of the system or termination of the marriage.
Under both regimes, a spouse is not responsible for the debts of the other and each spouse is free to dispose of his/her property, with the exception of the family home (Art. 1320 CC).
3.2. What are the formal requirements and who should I contact?
Marriage contracts (capitulaciones matrimoniales) must be concluded in the form of an authentic act (Art. 1315 CC). The contract must therefore be concluded in the presence of a civil law notary, who draws up the authentic act (Art. 1280 CC). This is then registered in the civil register in order to be effective against third parties.
3.3. When may the contract be concluded and when does it come into effect?
Marriage contracts can be concluded before or at any time during the marriage. Marriage contracts concluded prior to the marriage will only be effective if the marriage is subsequently celebrated (Art. 1333 CC). Marriage contracts concluded during the marriage are effective from the moment they are concluded but are not be effective against third parties until they have been registered in the civil register.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses may also modify an existing contract, as long as the same formal requirements are met (Art. 1331 CC). However, the modification will not affect rights already acquired by third parties (Art. 1317 CC).
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
In Spain the marriage contract concluded during marriage is binding between the spouses the same day after the execution of the instrument, and before third parties from the date it is registered in the Civil Register, see art. 1317 Civil Code, which states that “The modification of the matrimonial property regime carried out during the marriage will in no case prejudice the rights already acquired by third parties” . Therefore it is not possible to conclude a marriage contract during marriage with retroactive effect.
