Sharing common assets can be tricky when a couple separates. To avoid serious problems or lengthy litigation, experts recommend, in addition to agreeing on an economic regime before entering into marriage, to make marriage agreements when appropriate, so that ownership of real estate and habitual residence is clear in the event of divorce.
What happens to housing when there is a divorce?
Before explaining what, the matrimonial capitulation is, we will present, in a simple way, what happens to the home when a couple divorces based on the four most common assumptions:
The home is owned solely by one of the spouses
If one of the spouses has acquired the property alone before marrying, the ownership of it will not be altered in the event of divorce. However, the Law establishes that there is a right of use in favor of the protection of the family. This right will fall on the most disadvantaged part of the couple or on the one that acquires custody of the children. If this is shared, the habitual residence will be used by both parties equally.
What does this mean and how does it affect home ownership? In this case, the house is transferred to the spouse who is not the owner and its use is temporary. This time will depend on the divorce agreement, the economic situation of the members of the couple and, if they have children in common, their benefit.
The home belongs to the parents of one of the spouses
In this case, exactly the same thing happens as in the previous one : the property of the home, as such, is not altered with the marriage but, in the event of divorce, its use will be transferred to the most disadvantaged part of the couple or to the one who is remains with custody of the children.
Mortgage expenses have only been shared during the marriage
Let’s take an example: a person buys a house and, when he gets married, shares the mortgage expenses with his husband / wife.
What happens if they get divorced? Does the spouse have property rights to the home?
No. In that case, the home belongs to the initial buyer, unless ownership of it has been changed in the title deed. Of course, if when the two of them get married they assume the mortgage in half, the owner must pay the corresponding installments or payments to their ex-partner in case of divorce.
The house has been bought by the married couple “in community”
This is possibly the most common case and so it is important to consider making a marriage capitulation: a couple decides to marry and buys a home.
If that house has been acquired under a community property regime and they divorce, the “community property” is dissolved and it is necessary to liquidate the common property and share it. The options are the same in regular homes as in other real estate: sell the property and distribute the money, or have one party “buy” half from the other.
What is the marriage capitulation?
Marriage agreements are a document in which two people who are going to get married agree, in writing, the rules that will regulate their marriage, mainly for economic and / or patrimonial purposes , although other aspects related to the way of life of the partner (where they will reside, compensation in case of infidelity, raising children together, etc.), or with the way in which they will face a possible breakup (distribution of financial burdens, child custody, rules of coexistence, etc.).
The pacts contained in the marriage agreements must be signed by mutual agreement and respect the Law and public order, in addition to the equality of rights between the spouses.
This document can be signed before or after the marriage and, in all cases, it must be included in a public document – deed – registered, depending on its content, in the Civil Registry (where mention is made of the capitulations granted and that is mandatory), in the Property Registry (only necessary if the capitulations affect real estate such as apartments or houses), or in the Mercantile Registry (only if the document affects companies).
Marriage capitulation: model and types
Currently, the types of marriage capitulation included in our Civil Code are:
The gains obtained by the spouses during the marriage are common property. This type of marriage agreement does not affect private property, inheritance, donations or assets acquired before the marriage, and is applied with or without the signing of specific marriage agreements.
Separation of property regime
This regime supposes the total independence of the spouses in the economic plane, but does not include the free disposition of the family home if there is common descent. In this case, the signing of capitulations is mandatory.
This model works the same as the previous one. In the event of separation, the spouses will share both the increase and the decrease in their common assets. It also requires signing a marriage agreement document.
The regime that applies to marriages is that of community property, with the exception of Catalonia, the Balearic Islands, the Valencian Community, the Basque Country and Aragon, communities where the marriage is carried out by default under the separation of property regime.
Is it possible to change the capitulations after getting married?
The economic regime can be modified at any time during the marriage. It is only necessary to go to the notary’s office and grant new matrimonial agreements to dissolve the previous regime and / or liquidate the acquired patrimony, in case of going from community property to separation of property.
When is it recommended to make a marriage agreement?
The marriage capitulation serves to protect property in the event of divorce and, for this reason, it is recommended that everyone consider the different options before getting married. Even so, this type of agreement is more common in liberal professionals and in people who have companies.
You can sign the marriage agreements before or after you get married. In any case, this document has expiration, and if the contracting parties register the capitulations but do not contract marriage in one year, they will be without effect. In addition, and due to its versatility, marriage agreements can also intervene, in addition to the spouses, their parents or other people, as business partners.
From Sky Marketing we recommend our clients to make marriage agreements when the administration of certain income, fruits or assets is carried out autonomously and independently by one of the members of the couple. Also when one of the spouses makes an extraordinary contribution to the estate (for example, a family inheritance), or when the liquidation of assets, in the event of divorce, must be done unequally.
In the same way, if you have business with other people, if you plan to make inheritance provisions through improvements for the heirs or, in the case of recognition of extramarital children, the capitulation is considered essential to protect your home and your assets.
On the other hand, if the spouses are owners of few assets or if their sources of income are specific (payroll), the marriage capitulation is not always mandatory, nor is it even recommended. Our advice, in these cases, is to take advantage of one of the subsidized regimes established by the legislation (separation of assets, community property or participation), depending on your interests.
All the information on the matrimonial capitulation, its models and its typologies is included in Article 1327 of the Civil Code. If you have questions, we invite you to consult this document. And if you are thinking of buying a house and are looking for legal advice, contact Tajarat properties.