International Marriage Contracts & Agreements

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What are marriage settlements for?

A international prenuptial agreement is an agreement made before or during the international marriage that mainly regulates the financial relations between the spouses.

What can be included in a prenuptial agreement?

In Spain this content is very broad (Article 1326 et seq. of the Civil Code), and may refer to:
The establishment of the matrimonial property system that governs marital life from the time of the grant.
Donations between spouses and to third parties.
Provisions on the distribution of the inheritance.
Submission of the future spouses to the applicable law or jurisdiction that will govern their marriage.
Consequences after a future separation or divorce.

Under which rules are these agreements regulated when, with regard to the spouses, there is "a foreign element"?

When the marriage or future marriage has “foreign elements” rooted in the non-Spanish nationality of one of the spouses or in the residence of Spanish nationals abroad, it is necessary to determine the law applicable to the property effects of the marriage, both in the agreed regime and in the non-agreed regime.

Since 29 January 2019, the determination of the law applicable to the matrimonial property regime is made through the conflict-of-law rules contained in EU Regulation 2016/1103 on international jurisdiction, applicable law and the recognition and enforcement of decisions in matters relating to matrimonial property regimes.

This Regulation applies to marriages concluded after that date. For marriages celebrated before that date in Spain, the law applicable to the matrimonial property regime, whether agreed or not, is determined by the conflict rules contained in Articles 9.2 and 9.3 of the Spanish Civil Code.

Which law may be chosen by the parties to regulate their matrimonial property regime?

If the marriage is celebrated in Spain after 29 January 2019, the parties may choose as applicable law those listed in Article 22 of Regulation 2016/1103, which are: the law of the residence or of the nationality of the spouses or future spouses at the time of the conclusion of the agreement.
Within the law chosen, one may opt for one of the regimes regulated therein or set up one’s own economic regime within the framework permitted by that law. It is also possible that other matters may be agreed in the contracts of marriage. For example, the EU Regulation allows the parties to agree (with limitations) on the court that will hear any question that may arise with regard to the matrimonial property regime or also, outside this specific EU Regulation, but in application of EU Regulation 1259/2010 (Rome III), the law applicable to a future separation or divorce.

If you are considering the possibility of drafting a marital agreement (pre-marital or post-nuptial) with foreign elements, at Winkels Abogados, as experts in international family law, we can advise you on the issues to be included as well as the process to carry it out.