When a marriage involves an international element (such as the nationality of the spouses or residence abroad), the matrimonial property regime that applies may not necessarily be one of those provided for under Spanish law, such as the Civil Code or special regional laws.
In these cases, conflict of law rules determine which legal system governs the couple’s marriage property regime, based on the specific circumstances of each marriage.
These rules are primarily found in Regulation (EU) 2016/1103, and if that does not apply, in Article 9.2 of the Spanish Civil Code.
Regulation (EU) 2016/1103
As of January 29, 2019, Regulation (EU) 2016/1103 is applicable, introducing enhanced cooperation on matters of jurisdiction, applicable law, and recognition and enforcement of decisions relating to matrimonial property regimes.
According to Article 69.3 of the Regulation, the provisions in Chapter III, which set out the rules on applicable law, only apply to marriages that took place after January 29, 2019, or if the couple chose the applicable law after that date.
If these conditions are met and the Regulation applies, spouses may choose which law governs their matrimonial property regime under Article 22 of the Regulation. However, the choice is limited to laws with which the spouses have a close connection, such as their nationality or habitual residence.
In the absence of a choice of law, the applicable law is generally determined as follows:
- a) The law of the spouses’ first common habitual residence after the marriage; if this is not applicable, b) The law of the common nationality of the spouses at the time of the marriage; if this is not applicable, c) The law with which the spouses have the closest connection at the time of the marriage, considering all relevant circumstances.
Article 9.2 of the Spanish Civil Code
For marriages celebrated before January 29, 2019—currently the majority of cases—Regulation (EU) 2016/1103 does not apply. In such cases, Article 9.2 of the Spanish Civil Code governs the applicable law.
This article states that the effects of the marriage are governed by:
- a) The common personal law of the spouses at the time of the marriage;
- b) If no such law exists, by the personal law or habitual residence of one of the spouses, chosen by both in an authentic document before the marriage;
- c) If no such choice was made, by the law of the spouses’ first common habitual residence immediately after the marriage;
- d) In the absence of such residence, by the law of the place where the marriage was celebrated.
For example, if two French nationals married 14 years ago, the applicable law would be German law (since the Regulation does not apply), and in the absence of a specific agreement, the default regime would be that of community of property. If a Spanish and an German national married in 2021, the applicable law would be German law (as the Regulation would apply), and in the absence of a choice, their matrimonial property regime would be separation of property, which is the default under German law.
Why It’s Important to Understand Matrimonial Property Regimes
Understanding the matrimonial property regime in international marriages is crucial for various legal processes, including property settlements in the event of divorce, inheritance matters after the death of a spouse, and when acquiring or selling property.
For example, Article 51.9(a) of the Spanish Land Registry Regulations highlights the importance of knowing the applicable regime when acquiring property. If the applicable law is foreign, proving it may be complex, and the law in force at the time of the property transaction must be considered. To address this, the Spanish Directorate-General for Legal Security and Public Trust allows postponement of proof of the applicable foreign law until the moment of sale or encumbrance of the property, while simply stating in the registry that the property is acquired “subject to the matrimonial property regime.”
Many rulings from the Directorate-General address these issues, including a recent one from May 11, 2022.
In cases of liquidation of matrimonial property regimes, inheritance, or transfer of property by foreign nationals, the relevant authority (whether a judge, notary, or registrar) will apply the property regime determined by Regulation (EU) 2016/1103, or Article 9.2 of the Spanish Civil Code if the Regulation is not applicable. This regime governs the ownership of assets, the rights of each spouse, and the division of property where applicable.
Sandra Márquez
Criminal & Family lawyer
CEO Expat&Legal Spain