icono telefono+34 91 350 28 42
icono whatsapp624190166
icono emailinfo@winkelsabogados.com
Quiero asesorarme

Marriage contracts

Spanish marriage contracts (capitulaciones matrimoniales) are regulated in Articles 1325 to 1-335 of the Civil Code. They are a bilateral, formal legal transaction entered into by the spouses, before or after the marriage, by which they can fix, modify or replace the property regime of their marriage.
At Winkels Abogados we are lawyers specialised in matrimonial property contracts and we can advise you on the matrimonial property regime that best suits the characteristics and needs of both members of the couple.

The following requirements are necessary for the contract to be valid:

  • They must be recorded in a public deed.
  • The marriage must take place within one year of the conclusion of the marriage contract.
  • Registration in the Civil Registry.

The same requirements must also be fulfilled in order to modify the contracts.

Do you need a family lawyer?

Contact us

We will respond as soon as possible.

Consent(Required)
This field is for validation purposes and should be left unchanged.

Marriage Contracts

What are marriage contracts?

Marriage contracts are a legal document, which can be executed before or after the marriage, and which must always be formalised in a public deed, the purpose of which is to regulate the financial regime of the marriage.

In Spain, there are different matrimonial property regimes. The main ones are the separation of property regime (régimen de separación de bienes), joint ownership of acquisitions (régimen de gananciales) y participation regime (régimen de participación en las ganancias)

In cases where no public deed has been granted, the regime of the corresponding Autonomous Community shall apply.

These agreements can be made by all persons who have the capacity to enter into contracts, or the

capacity to act and will be valid during the marriage and at the moment when the marriage bond is broken or extinguished (in cases of divorce, separation, annulment, or death), when they become particularly relevant.

If one of the partners is a foreigner (foreign element), it is very important that marriage contracts are drawn up in which, in addition to the matrimonial property regime, factors such as the law applicable in the event of divorce and, if applicable, the courts competent to hear the divorce are regulated.

I need to talk to an expert

Marriage Contracts

What is the purpose of a marriage contract?

The marriage contracts serve to regulate the economic regime that will govern the marriage and, although they normally regulate the economic aspects of the marriage, they can also include other agreements of a non-property nature.

There is a freedom in agreements between the spouses, but a stipulation which is contrary to law or morality or which limits the equality of the spouses is null and void (Art. 1328 CC).

We can also establish agreements and stipulations on the custody of the children, but the judge is not obliged to adopt them (although he/she will take them into account) and they must have the V.B. of the public prosecutor’s office to ensure that the interests of the child are met.
Through these agreements we will avoid future problems, trying to protect the common and private
assets, in case of divorce or in situations where there are important debts that could put the assets of
the spouses at risk.

Solve your case

Marriage Contracts

Where should marital contracts be registered or recorded?

The marriage contract is a contract that can be concluded before or after the marriage to fix the rules governing the financial aspect of the marriage and can be modified as often as desired.

  • Before marriage: If they are made before marriage, the agreed financial regime will only come

into effect from the celebration of the marriage, and this, in turn, must take place within one year.

  • Once married: If they are made later, the effects will begin at the same time as the contract is

made, but in the time that elapses from the celebration of the marriage until the contract is

made, there will have been a supplementary legal regime (in general that Spanish regime of joint-ownership of acquisitions called “régimen de gananciales”) that would have to be liquidated.

Marriage contracts must be notarized and entered in the Civil Register, together with the registration of the marriage, in order to be effective vis-à-vis third parties.

Entry in the civil register can be requested by either of the parties or by a person specially authorised by them. The notary can also be instructed in the deed to promote submission to the register.

The existence of agreements modifying previous agreements shall be indicated by a note in the deed containing the previous stipulation and the civil law notary shall record this in the copies he issues.

Nationalised foreigners must first register their marriage at the Central Civil Registry.

Registration in the Land Register can also be applied for if the agreements in the marital contracts affect real estate, and registration in the Commercial Register if the agreements have consequences for a family business.

Marriage Contracts

What documentation do I need to present at the Civil Registry for marital contracts in Madrid?

Their effects begin at the moment they are granted, but in order to give them publicity and for them to have effects against third parties, they must be recorded marginally in the registration of the marriage in the civil registry.

In order to register the marriage settlements in the corresponding Civil Register, the application must be made by either of the grantors or by a person specially authorised by them (power of attorney), or in the Deed of Settlement itself, the will to have the marriage settlements registered must be expressed. For registration, the following must be provided:

Notarial Deed of Marriage Settlement. One copy is sufficient for registration, and a copy is normally submitted to the notary's office and sent to the civil registry office. If a second copy is submitted, it can be withdrawn with a reference to the entry in the civil register).

It is advisable, but not compulsory, to present the Family Record Book (Libro de Familia), so that it can be updated.

Municipal Certificates of registration of the grantors.

ID card or passpor

It can also be sent by certified mail to the Civil Registry Office in Madrid or to the appropriate address.

Marriage contracts

Are there any limitations to the formalisation of marital contracts?

Indeed, there are limitations to the formalisation of marriage contracts.

The limit to the content of the capitulations is regulated in Article 1.328 of the Civil Code, which establishes the nullity of any stipulation that is contrary to the law or to good morals (buenas costumbres), or that limits the equality of rights corresponding to each of the spouses.

And, based on this premise, and despite the freedom of pacts between spouses established in Article 1.255 of the Civil Code, neither may amendments be introduced that are contrary to the law, good morals or that limit the equal rights of the spouses.

In this sense, the judgement of the Provincial Court of Pontevedra no. 202/2018 of 13 June and the Judgement of the Supreme Court of 24 June 2015 “the protection of the equality of spouses” have been pronounced in this sense.
For this reason, the advice of a lawyer who is an expert in marriage contracts is essential and at Winkels Abogados we can help you.

Protect your rights

Marriage Contracts

Can prenuptial agreements and marriage contracts be modified?

Yes, prenuptial agreements and marriage contracts can be modified at any time and as many times as desired, provided that there is agreement between the spouses and the following requirements are met:

  • The consent of both spouses is absolutely essential.
  • Signature before a civil law notary is Amendments to the new marriage contract must be signed in the presence of a civil law notary and recorded in a notarial deed.
  • Registration in the Civil Register (essential for the agreements to have effect if they involve third parties), Registration in the Land Register (if the marital agreements affect real estate) and
  • Registration in the Commercial Register: only if the agreements have consequences for a family
  • No changes may be made that are contrary to law, public policy or the equal rights of the

In order to avoid successive and future modifications of the contract and that they may have a certain permanence, they may be subject to certain conditions or time limits.

In order to be valid, the modification of the marriage contracts must be carried out with the assistance and agreement of the persons who participated in them as grantors, if they are living, and the modification shall affect the rights granted by such persons.

For this reason, it is very important that for the drafting and registration of the marriage contracts you seek the help and advice of Winkels Abogados, lawyers specialised in Family Law in Madrid and experts in marriage contracts in Madrid, in order to draw up the marriage contracts in accordance

with your personal interests, supervising that they comply with the current legislation.

Marriage Contracts

What are the legal requirements for a marriage contract to be valid?

The invalidity of marriage contracts shall be governed by the general rules of contracts and the annulment shall not prejudice bona fide third parties.

If in the content of the contracts we find clauses that do not respect the content of Article 1.328 of the Civil Code (that is contrary to the law or good morals or that limits the equality of rights corresponding to each of the spouses), these stipulations will be null and void.

Marriage contracts that have not been recorded in a public deed or, where appropriate, notarised in a public deed if the marriage has not been celebrated within one year of their execution, shall be null and void.

Nor would they be valid if the signatories do not have the capacity to contract. In this sense, we have to say that, if the two contracting parties are of legal age and are not disabled persons in need of support measures for the exercise of their legal capacity, they will not need any complement to their capacity.

If either of the contracting parties is an unemancipated minor, they will need the required parental authorization of their parents or guardians for the establishment of the Spanish Joint-ownership of acquisition regime (régimen de Sociedad de gananciales).

Marriage Contracts

What is restitution, and what is the confirmation, correction or validation of marriage contracts?

Restitution is an attempt to eliminate the effects of a contract that has been declared null and void.

Confirmation, correction and validation are possible in cases of annulment but not in cases of absolute nullity. They presuppose the will of the spouses to maintain the validity of their acts from the moment they were entered into.

At Winkels Abogados we are experts in family law and pre-nuptial and post-nuptial agreements, so we can advise   you on the most appropriate financial regimes for your circumstances, as well as clauses or measures that are in accordance with the law.

Marriage Contracts

Can marriage contracts be null and void, and what are the grounds for them?

Like any contract, an agreement may be subject to nullity. By way of example:

  • Consent has been given by a person who is not allowed to give consent under the Civil Code.

E.g. an unemancipated minor without the consent of his or her parents or guardian, unless he or she has agreed to the separation or participation regime.

  • Consent under mistake, violence, intimidation or fraud.
  • Agreements that are contrary to the law or morality or that limit the rights of the spouses.
  • No public deed.

It may be requested by any of the spouses, heirs, creditors or any interested third party. And they will affect the whole of the contracts or some of the clauses. They however, are imprescriptible, the right of restitution has a term of 15 years.

An agreement may also be subject to annulment in the following cases:

  • Vitiation of consent that is not susceptible to absolute
  • Lack of capacity to act on the part of one of the granting spouses.
  • Lack of consent in acts of administration (ex Article 1.322 of the Civil Code).

Within what period of time can the action be brought? The limitation period is 4 years (as established in article 1301 of the Civil Code): from the cessation of violence or intimidation, or from the date on which the contract was perfected by mistake or misrepresentation, etc. In the case of, gratuitous transfer, they are imprescriptible.

If a contract is declared null and void, the effects are retroactive, i.e. it is null and void from the beginning, i.e. from the time of its conclusion. When a contract is annulled, just as when a contract is null and void as of right, the parties are obliged to return to each other the things that were the subject matter of the contract.

Marriage Contracts

What happens in case of total nullity of the contracts?

Supreme Court judgment no. 370/2012 of 18 June, has ruled that:

“Article 1.335 of the Civil Code establishes that the invalidity of the contracts shall be governed by the general rules of contracts, so that, once the lack of cause has been declared, a structural defect of said chapter is produced and the type of ineffectiveness that must be applied is nullity. Hence, once this action has been brought and nullity has been declared, the limitation period established in Article 1.301 of the Civil Code, which applies to cases of nullity, cannot be applied, as this Court has reiterated”.

In other words, there is no limitation period for bringing legal proceedings in cases of null and void contracts.

Once the contract has been declared null and void, restitution will be sought in an attempt to eliminate the effects of the contract that has been declared null and void. Article 1.303 of the Civil Code seeks to restore the spouses to the personal and property situation prior to the signing of the marriage contracts.

In the event of nullity of marriage contracts, the effects of the nullity will have retroactive effect. In other words, they are null and void from the time of its execution and, consequently, the supplementary economic regime would have to be applied according to the territory.

Confirmation, rectification and validation of acts shall not be possible in cases of absolute nullity.

Schedule an appointment

Marriage Contracts

What happens in cases of partial nullity, affecting some of the clauses of the contracts?

In the case of partial nullity, it is necessary to take into account the will of the couple to grant them.

Once the null clauses have been eliminated, the contracts still preserve the spirit of the spouses’ agreements, so they will remain effective (principle of preservation of contracts).

How can all or part of the effects of the contract be maintained?

Yes, in cases of annulment, it is possible through confirmation, correction and validation (not being possible in cases of absolute nullity) because they imply the will of the spouses to maintain the validity of their acts from the moment they were entered into.

Confirmation can be defined as the unilateral declaration of will, made by the party entitled to make it, with the concurrence of the requirements demanded by law, by which the defects that affected the originally voidable contract are purified, which becomes valid and effective in a definitive manner, as if it had never been affected by any defect.

The stipulations of the contracts that are null and void may also be eliminated and/or remedied, validating the rest of the agreements.

We answer your questions

Frequently asked questions about the matrimonial property agreement

Prenuptial agreements have the legal nature of a contract, i.e. they are the various agreements made by a couple before marriage.
These agreements will be valid during the marriage and, in particular, at the time when the marriage bond is broken or extinguished (divorce, separation, annulment or death). The marriage contracts are the legal document, in a public deed, by means of which the future couple formalises the agreements reached in the pre-nuptial agreement.

Yes, they can be modified at any time, provided there is agreement between the spouses.

The marriage contracts would not be valid because they are subject to the condition of the celebration of the marriage.
Prenuptial agreements, as a contract, would be valid and subject to the legal regime applicable to contracts.

There may be other agreements of a non-property nature, although they normally regulate the economic aspects of the marriage.
A stipulation that is contrary to law or morality or that limits the equality of the spouses is null and void (Art. 1328 CC).

This measure will not be compulsory for the judge, but will have to be approved by the Public Prosecutor’s Office.
It will have to be assessed whether this agreement is not detrimental to the child, so that the divorce judge could agree on a different custody system, in the interests of the child.

The following clauses or stipulations can be included:

  • Donations by reason of marriage. These are made before the marriage and in favour of one of the spouses or of both spouses to each other.
  • Waiver of the compensatory pension.
  • The payment of a monthly annuity to the other spouse without there being an imbalance of assets.
  • Payment of an amount in the form of a lump-sum benefit in whatever form they wish.
  • Testamentary stipulations of one or both spouses…

All persons who have the capacity to contract or the capacity to act.

The supplementary economic regime would have to be applied depending on the territory.

Other Related Services

Inheritance and Succession Lawyers

Inheritance and Succession Lawyers
Matrimonial Property Regimes

Matrimonial Property Regimes