The Bar Association of Madrid draws up a decalogue of preventive recommendations for future family conflicts

Carlos Berbell

19 January 2016

The decalogue may be compared to a gem or a ruby in terms of its value for individuals who are to embark on a life together. It summons people to reflect on and identify the problems they might face in the future in order to take measures to prevent them.

The key person behind this decalogue is Isabel Winkels, managing partner of Winkels Abogados and chairperson of the Family and Inheritance Division of the Bar Association of Madrid, within the framework of which this useful document has been drawn up.

«I am sure that this decalogue of recommendations we provide for couples or future couples will serve as a preventive measure and resolution-based reference for family crises. How? By adopting a series of preventive measures that would simplify the consequences of these crises, which usually have considerable impact on both partners and their children», says Winkels. 

«According to the latest statistics released by the General Council of the Judiciary, the number of marital dissolutions increased by 6.9 percent in 2014 compared to the year before. In other words, the number of breakups was the highest since 2007. This is why this decalogue is –and I am not tired of repeating it– a fantastic tool to reduce the conflict and pain generated in separations, from a legal perspective», adds the lawyer.

DECALOGUE

1.- Specifically choose between the three current legal options, the matrimonial property regimes best suited to the personal and professional circumstances of the couple: community property, separation of property or participation regime. It is best not to limit ourselves to choosing community property, as this is the default option established by the law, instead, however, obtain sufficient information on and assess the consequences of each one, with the peace of mind that if our circumstances change over the course of the marriage, we can always change options. Particularly assess the advantages of the participation regime. This regime is chosen through a marriage contract executed by public deed that must be recorded in the Civil Registry.

2.- In addition, sign pre-nuptial agreements. In these, we can establish a priori how many agreements we deem important to regulate our marital life: recognition or waiver of spousal maintenance, depending on the amount of time we think about looking after children when they are born, the type of education we want to give them –secular or religious, in a public or private school–, agreements regarding family residence…all these concepts can have an impact on our life together, depending on our circumstances. The Supreme Court recognised the validity of these agreements, among others, in its recent judgement of 24 June 2015. It is desirable to execute them by public deed, but it does not have access to the Civil Registry.

3.- However, if we do not wish to enter into marriage, but instead are interested in cohabiting «more uxorio», or becoming a common-law couple, recorded or not in the Registry of each Autonomous Community, it is not only worthwhile, but essential to sign a cohabitation agreement. Common law does not regulate common-law couples, therefore the Autonomous Communities are responsible for regulating this type of cohabitation in each Community. The Supreme Court has established that Civil Code rules are not applicable to the consequences of breakups of these couples, with the exception of all matters concerning minors, whose protection is governed under art. 39 of the Spanish Constitution. If we do not agree upon the financial terms of our cohabitation agreement, one of the partners may face extremely unfair and unbalanced situations that cannot be offset by the application of Civil Code rules. It is possible to resort to other legal theories to achieve this redress, such as that on unjust enrichment (recognised, among others, in the Supreme Court judgement of 6 May 2011); however, it is necessary to accredit the cohabitation and the circumstances involved. When it has been agreed in an official document, it must be justified in the corresponding proceedings.

In a judgement issued on 31 March 2011, the Supreme Court declared that written documents in foresight of future couple crises are deemed valid.

It is also essential to accredit the plausibility of cohabitation for the purposes of recognising a survivor’s pension, given that it is only recognised for common-law couples recorded in a public registry, or who have made a record of such in a public document, and after a continuous and uninterrupted period of cohabitation for five years or more. By executing a public deed to make a record of cohabitation we also make a record of the other measures that must regulate it.

4.- If a member of a future marriage is foreign, or even if both members are Spanish but are planning on residing abroad, it is also essential to sign both marriage contracts and pre-nuptial agreements, given that the foreign element calls for a different approach to the situation, applying rules of private international law outlined in the majority of cases in international conventions or EU regulations. These rules cover international jurisdiction, the law applicable to marital crisis, personal and property measures and those concerning minors. In addition, if the ruling is passed abroad, the necessary requirements to ensure it is recognised and enforced in Spain should be established.

EU Regulations recognise the validity of signed agreements on the applicable law; therefore, it is essential to execute a deed in which the law applicable to the matrimonial property regime and possible divorce is agreed upon, as these agreements always speed up the legal proceedings that may arise.

5.- Additionally, these foreign marriage agreements can and should regulate key matters such as the countries where the spouses can take up future residency, the religion in which their children will educated, the type of schooling, the way in which both spouses will contribute to marital responsibilities (financially and/or time spent at home) and the type of compensation in the event of breakup, agreements that are completely valid in accordance with the Supreme Court.

6.- Carefully decide where the family home will be set up: if it is in a private home belonging to one of the cohabitants or the parents of one of them, it is advisable to establish relevant provisions, given that in the event of a possible breakup the custodial parent of the child will always be entitled to stay in the home. For this reason, from the outset of life together, it is advisable to look for alternatives that ensure the private home of one of the cohabitants (in the majority of cases, their main asset) is not tied to the future life of the couple.

7.- At the beginning of life together, draw up an inventory of assets belonging to each cohabitant, including current account balances, or financial products, and items that may be of special sentimental value, indicating who purchased each one. This avoids painful post-conflict with regard to who owns a certain item that may be deemed valuable.

8.- When the first signs of disaccord or crisis start to emerge, see a family therapist or mediator, who attempts to find solutions or answers before the crisis becomes worse and the solution unreachable.

9.- If the crisis is irresolvable, and children are implicated, both parents should talk to them together about the family breakup, always aiming to reassure them, provide peace of mind and avoiding all sense of guilt. If we are unsure as to how they are going to react, consult a child psychologist. Both parents should follow the advice and guidelines given in order to prevent the children from suffering more so than what is necessary.

10.- Always make a will, especially after marital breakup. If we do not want our ex-partner to claim the assets that our children should inherit, appoint assignees and executors. If this appointment is not explicitly made, the other parent will manage the assets that our children inherit, as sole holders of the parental authority, irrespective of the mandatory judicial review when disposing of any asset. This is particularly important if the person who is going to make a will lives permanently in a country that does not match their nationality, yet wishes to draw it up under the law of their nationality and not in accordance with the law of their place of residence.

Lastly: we must exhaust all possibilities of mutual agreement, seeking conciliators and avoiding, for our sake and for that of our children, long and tough contentious proceedings in which we would have to settle according to what a third person –a judge– dictates instead of acting in line with our wishes, formalised in a regulatory agreement. We can also consider pursuing other tools to help couples reach agreements that avoid having recourse to the courts, perhaps arbitration.