The marital economic regime is an unknown issue for many of today’s marriages.
Therefore, it is necessary to define what the matrimonial property regime is: «the set of rules that establishes the way in which the spouses must manage and administer their assets (both common and private) and how these assets relate to third parties. people outside the relationship. It is acquired automatically at the time of marriage and lasts for the duration of the entire marriage, it does not change.
In Spain, the main marital economic regimes are: the participation regime, the community property and the property separation regime. So don’t worry, we have prepared a complete guide to resolve all your doubts.
What does it mean to be married in separation of property?
Being married in separation of property means, mainly, that both the assets and debts acquired before the marriage, as well as those acquired subsequently, will belong to the husband who generated them. So this will allow you to manage your assets freely and exclusively, without having to consult the other spouse.
Unlike what happens with the community property regime, the income and debts of each of the spouses do not belong to the other spouse 50%. Therefore, in the event of divorce or separation, each spouse will maintain their assets without having to distribute it with the other. This circumstance will not vary if we are facing a divorce or separation of property without children or with children, since it is a purely economic issue.
How to know your marital regime?
Some autonomous communities such as Cataluña, Valencia and the Balearic Islands automatically establish this regime for those spouses who, before getting married, meet one of the two conditions:
- They had been living in the community uninterruptedly for 10 years.
- They had been living in the community uninterruptedly for 2 years and, in addition, they stated in the Civil Registry that they wanted to acquire the neighborhood of the place of residence.
This only applies as long as they have not made marriage agreements before or after getting married before the notary, that is, they have not gone to a notary to express their willingness to choose one of the existing economic regimes in Spain.
Separation of assets with children
If there is no agreement between the couple on how each one will contribute to the family responsibilities, contributions will be made based on the financial resources that each of them has. By economic burdens we understand the education of common children, food, supplies, etc.
What happens to common property after divorce?
In the separation of property regime, there is no common property between the spouses, which does not mean that the spouses cannot have common property. It is common for spouses, despite being married in a separate property regime, to have bank accounts, a home and/or mortgage in common.
For these cases, regarding the assets, there are the options of:
- Divide the common assets.
- Maintain co-ownership.
- Sell the property to another person.
- Award the property to one of the spouses.
In the case of dividing the common assets or granting the property to the other spouse, the most convenient option is to reflect this situation within the Regulatory Agreement. Thus, to obtain tax benefits, we will save the Documented Legal Acts Tax.
As a general rule, joint assets after a divorce with separation of property will be distributed taking into account the contribution of each of the spouses at the time of acquiring it.
In the event that there is a common debt, such as a home mortgage, both spouses may agree that one of them will take charge of this debt, but it must be taken into account that in the eyes of the creditor (in the In most cases, the bank), both spouses are debtors. Therefore, in the event of failure by one of the spouses to pay the mortgage payments, the creditor may demand the outstanding payments from the other.
Advantages and disadvantages of separation of assets
The main advantages of this regime are:
- Each spouse is the sole owner of his or her assets.
- Each spouse may dispose of his or her assets without the consent of the other (except for the family home, which will require the consent of the other spouse or judicial authorization).
- If both spouses want to acquire common property, they may do so.
- The debts of each spouse will not affect the assets of the other.
- Simplicity in the divorce or separation procedure.
A point against the separation of assets could be that it can create disadvantages, since the spouse who dedicates himself exclusively to the home or who does not work will be at an economic disadvantage. However, to compensate for this disadvantage, in the event of divorce, the less advantaged spouse will have the right to request a financial benefit for work reasons from the other spouse.