The matrimonial property regime is the set of legal rules and provisions that regulate the economic and financial relations between the spouses, as well as between the spouses and third parties. These rules determine how assets and debts are administered, disposed of and distributed within the marriage, affecting both assets acquired before and during the marriage. They also establish the financial responsibilities and possible legal consequences in the event of separation or divorce.
There are different types of matrimonial property regimes, such as joint ownership of acquisitions regime (Sociedad de gananciales), separation of property regime (separación de bienes) and participation regime (regimen de participación). Each of these regimes has its own characteristics and particularities that affect the way spouses manage their assets and financial obligations. The choice of an appropriate matrimonial property regime is essential to avoid future conflicts and to ensure a harmonious cohabitation in the economic sphere. In many cases, this choice is made at the time of marriage, although it is also possible to modify it later by means of agreements between the spouses, always respecting the established legal formalities.
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There are three matrimonial property regimes contemplated in the Civil Code: joint ownership of acquisitions, separation of property and participation regime. The regulation varies in the Autonomous Communities that have foral law (Aragon, Catalonia, Galicia, Balearic Islands, Navarre and the Basque Country).
Under this regime, the benefits obtained by the spouses during the marriage are made common. The property that each spouse had before the marriage shall be his/her personal property, as well as property received by gift and inheritance.
The joint ownership of acquisitions (Sociedad de gananciales) is what is called a “Germanic community” since the spouses do not have shares in the specific assets or in the estate, so that the consent of both spouses is generally required for disposition of joint ownership of acquisitions.
Under a separation of property regime (separación de bienes), each spouse retains ownership, enjoyment, management and disposition of all his/her property, regardless of when it was acquired.
In principle, the spouses are not liable for each other’s debts, which makes this regime the one generally chosen when one spouse has a business. This is without prejudice to the obligation of both spouses to support family responsibilities.
The participation regime (participación en ganancias) is an intermediate regime between the two previous ones, since the spouses keep their assets separate, with the differences between the gains of one and the other during the regime being compensated upon its dissolution.
The Civil Code establishes that, in the absence of an agreement to the contrary, the economic regime will be that of joint ownership of acquisitions. In the Autonomous Communities with Foral Law, the supplementary regime may vary. The modification of the regime is carried out by means of marriage contracts, which are drawn up before a civil law notary at any time during the duration of the marriage or during the year prior to its celebration.
With divorce or separation, the matrimonial property regime is dissolved. If the regime was that of joint ownership of acquisitions (or of participation), a process must be initiated, either contentious or by mutual agreement, whereby the spouses divide the assets existing in the joint ownership of acquisitions. If the regime is one of separation of property and there are assets in joint ownership, the corresponding civil procedure must be used to liquidate them.
It is important to note that it is the divorce (i.e. the judgment or notarial deed) that results in the dissolution of the regime, even if the common life had ceased beforehand. Consequently, and as a general rule, the benefits obtained during the matrimonial crisis, but prior to the divorce, will be joint ownership of acquisitions.
At Winkels Abogados we accompany you in all the processes of liquidation of the matrimonial property regime from the beginning to the end in order to reach the best solution, without fissures and without possible future conflicts.
