PURCHASE OF PROPERTIES IN SPAIN. IMPORTANCE OF CONFIRMING MARRIAGE STATUS

If you buy a property in Spain, being married in some countries such as France, Belgium, Italy, Germany, Sweden, Canada, the United States, Latin America, etc., it is important to confirm the marriage status and the marriage system.

Normally, there are two marriage systems:

COMMUNITY OF ASSETS: 

France, Germany, Belgium, Netherlands, Sweden, Switzerland, Denmark, Norway, Poland, Luxembourg, USA (in some States)

In these countries, the basic system is the community of assets system after marriage.

SEPARATION OF ASSETS:
In other countries, such as the United Kingdom, Ireland, Scotland, the United States (some of the States), Turkey and the Muslim countries, it is the separation of assets.

That said, many of our French, Belgian, Dutch, etc. customers are married in “separation of assets”, that is to say they have chosen a regime that is not the basic of their country. If this is the case, we must inform that, at the end of the sale process, you will have to provide an ORIGINAL of the marriage contract, legalized in front of a notary, with the apostille, and translated into Spanish (in case the Spanish notary do not speak your language).

At this respect, it often happens that the buyer who wants to prove his matrimonial regime is obliged to understand the document he has to provide to prove his matrimonial regime. Many of them come with an extract from the Civil register where it is only proven that they are married, but, this report sometimes does not record the matrimonial regime, so, be careful with that.

Therefore, the buyer who is married in “separation” of assets in any of the countries with system of “community” of assets, must obtain one of the following documents:

– Original marriage contract – In this case, if it is “original” and issued by the major etc, or by any public entity such as the municipal council, etc., the apostille is not necessary. In fact, certain countries, such as France, Belgium, etc., have concluded agreements with Spain stating that, when the document comes from a public entity, it is exempted from the obligation of the apostille. But, as a general rule, our cabinet recommends that it is always better to get the apostille in all cases. It will give us security.

– Copy of the notarial marriage contract – In this case, the apostille must be obtained, because such a notarial act, not coming from a public entity, but from the notary, must be apostilled.

In case of those where, coming from one of the countries where the system is a community of assets, and married by separation, and that purchasers do not provide the marriage contract, the sale can be complete. In other words: The notary will authorize the sale. However, the following problems may occur:

– That, if both of you decide to buy only by one the spouses privately, the property may be registered in the name of both (in “community”).
– If the buyer buys with a mortgage, the bank may refuse to approve the loan if the matrimonial regime is not proven.

Therefore, we recommend you, if you desire to buy a property in Spain, and from one of the countries where the basic marital system is the community of property, to:

– Locate the original of your marriage contract, apostille it, and translate it in Spanish by an official translator.
– If you do not have the original, you should go to a notary in the region who proves your matrimonial regime by notarial act, then apostille it and translate it.
– You can also obtain an extract from the Civil register (where your marital status must be accredited as “separation”), and translate it by apostille + translation in Spanish.

THE CASE OF “PAREJA DE HECHO” : UNMARRIED COUPLE -DOMESTIC PARTNERS OR CONTRACT CO-LIVING: 

Spanish system regulates and recognsises the civil status of Pareja de Hecho in order to regulate the civil coliving and partnership from a couple.

Registering as Domestic Partner in Spain gives partners the rights determined by the Spanish system, which usually are the followings:

• The same adpotion rights to both partners
• Possibility to obtain the Spanish residency to the other partner
• Equal paternal rights on the children
• Economically, it can be regulated in a contract/agreement made by the couple to arrange the economic share/participation on their assets
• Preferenced rights to keep/subrogate at the property when rented
• Same tax advantages for Spansish resident Income Tax
• Rights to pension as widow

But, in the other side, being a Domestic Couple gives no preferenced rights nor bonifications in inheritance tax, although it will depend on the region, there are only some kind of benefits or rights on the inheritance process, but not as much as the ones as marriaged couples.

HOW ARE FOREIGN “PAREJAS DE HECHO” OR DOMESTIC PARTNERSHIP CONSIDERED WHEN BUYING A SPANISH PROPERTY?.

In the process to buy a property in Spain, Domestic Partnership even valid and registered in their countries, are not recognised in Spain in the process to buy a property. Spanish notaries and land registry officers are forced to identify the “marital status” of the buyers.

So, as a Domestic Partnership is not any type of marriage system, then, the Spanish system declares that the couple is unmarried. 

WHY IS IMPORTANT TO IDENTIFY THE CIVIL STATUS OF THE INTERNATIONAL COUPLE?

Because it will confirm the eventual rights/obligations, for example in case of sale or inheritance.

Purely, the Spanish system does not enter to regulate the civil status and the regulations of the marriage/partnership of the couple. The marriage or Domestic Partnership from the international couple, its civil relationship, its effects, conditions, and requirements are regulated exclusively by the country where the marriage/agreement has taken place.

So, the fact that the couple is buying a property in Spain will not affect at all to the civil regime established in their country of origin, which is formulated following their laws.  Spain is not allowed to regulate civil status when they are registered in another country (Spain may control or regulate Spanish marriages when couples are married and registered in Spain, but, Spais cannot regulate Mexican, or German, or Dutch marriages).

Thus, the way in which the Spanish property is managed, owned, and disposed by the couple will be subjected to the laws where the marriage/Domestic Partnership is registered. 

In property purchase process, when the Spanish system is asking to confirm the marital status, is just to record in Spain the “fact” of the marriage and its type. But this not implies any consequences more than this “obligation to inform the civil status”. 

The main reason is just to have a control of the marital status in the case of sale, or inheritance. That’s all.

So, when buying a property in Spain, it is “recommendable” to indicate the marital-civil status, but it will not have any kind of effects till the moment in which there is a transaction to make after the acquisition. 

As explained in this report, in the purchase process, the Spanish system will require the buyers to indicate their civil status. In case the system is a different one from the  one  used as “default” or in absence of contract/agreement of the couple, the Spanish system will require to provide proofs of that marriage.

But, what are the legal consequences if the couple do not provide with the documents required to proof the “different” or “special” marriage system?.

Usually, the Spanish system will consider the requirement of the identification of the marriage as not fulfilled, and the property will be registered in the name of the couple, indicating that they were married “following their national laws”.

So, when is obligatory to proof the civil status ? 

The necessary moment in which is obligatory to confirm the civil status is when a transaction on the property is made. For example, a credit, a mortgage, a sale, a process of inheritance, etc.

Although we can say that in the purchase process is not an essential condition of the process, and the purchase can be completed without this information, when a sale or inheritance process is openned, then, the seller/inheritor will need to proof its link with the property, and its relation with the other co-owner/testator.

At the selling/inheritance process,  the Spanish notary or the land registry officer will  ask the seller/inheritors to confirm the rights or obligations that they have about their shares.  Then, the sellers/inheritors, will provide the Spanish notary with the proper documents to confirm their rights on the sale/inheritance from their countries of origin/residence. If those documents give the necessary rights to the partner/spouse/ inheritor to act on the process accordingly to their laws, then, the Spanish system will not have anything to say, and will approve and execute the transaction following the foreign normative.

So, as conclusion:

• In case you are marriage with a different system from the “in absence of marital agreement”, you have to proof it, eventually in the purchase process, or obligatory on the sale/inheritance.
• Domestic Partnership is not considered to be accredited in Spain in the purchase process, and both partners will be considered as separated shares one from the other. In case of any further transaction in Spain which could affect to the rights to one of the partners, the affected one will need to go to the country where the Partnership is registered to claim to its rights. And, once obtained decision on its country, then to bring that decision to be executed in Spain.