Do you know your matrimonial property regime?

If the notary asks you at the notarial appointment for a property purchase in Mallorca, which matrimonial property regime has your outside of Spain marriage and he mentions with a questioning look, among other things, the community of property (“comunidad de bienes)”, then you are perhaps tempted to nod in agreement, because after all, you have no separation of property (“separación de bienes”) agreed and the term community of property seems to fit.

However, the matrimonial property regime is a pitfall that is often underestimated in practice.

After decades of marriage, many couples are obviously unaware of which matrimonial property regime they actually chose when they got married.

If the marriage was not contracted in Spain, the spouses’ home law normally governs the matrimonial property regime. It should be mentioned here that there are current legal efforts at EU level to strengthen cooperation in the area of matrimonial property regimes. Regulation 2016/1103 is intended to contribute to closer cooperation, for example in the areas of jurisdiction, applicable law and the recognition and enforcement of decisions in matrimonial property regimes. The Regulation was published in the Official Journal of the EU on 8 July 2016 and must be applied by the participating Member States from 29 January 2019.

Coming back to the situation described at the beginning of the notary appointment, the following matrimonial property regimes can be distinguished: Separation of property and community of property are the two extreme points of the matrimonial property regime. The community of property unifies the assets of the spouses, i.e. the assets of both spouses merge upon marriage; the separation of property has the opposite effect, i.e. a strict separation of the spouses’ assets. In Germany, for example, these two matrimonial property regimes must be notarised by a marriage contract.

Between them, according to German law, lies the statutory matrimonial property regime, the so-called community of gainful employment, which is described in the Spanish notarial deed as follows: “separación de bienes con participación en las ganancias”. In the case of the “Zugewinngemeinschaft” (community of gains), the assets are basically separated and only the gains acquired after the marriage are to be compensated. Thus, in the case of the profit-sharing community, the spouses manage their assets independently, however, if the marriage is terminated by divorce or death of one of the spouses, the gain is to be balanced. The consequence of this regulation is that if one spouse enters into a contractual obligation, the other spouse is not necessarily bound by it.

If only one spouse is present at the signing of the notarial deed in Mallorca and he signs exclusively in his own name and he has erroneously nodded in agreement at the mention of the words “comunidad de bienes” (community of property), then it has happened in the past that the Spanish notary public had to assume in the deed that the signing and the not present spouse acquire equal shares of ownership of the property in Mallorca. This then had the consequence that both spouses are registered in the land registry as owners.

The spouse signing alone naturally assumed that the house is in his sole ownership and he can appear alone before the notary when selling. If he wants to sell the house later without the other spouse, the Spanish notary will point out to him that he is not the sole owner of the property and that the consent of the spouse is required. The mistake can have very unpleasant and costly legal consequences: If in the meantime the divorce is carried out and if the person who signed the purchase alone, in ignorance of the actual ownership of the house in Mallorca is not affected by the divorce proceedings, he will have to buy the necessary consent to the sale possibly expensive. If the consent is denied, then it may be necessary to sue for annulment of the co-ownership community (“extinción de condominio”).