Dear lawyer,
My husband and I are expatriates who live in Javea. We got married in Spain years ago. I would like to know, in the event of a possible divorce, if the properties bought by my husband (in and out Spain and) during the marriage belongs to both of us or only to him. Thank you.
Dear client, thank you for your inquiry.
Leaving aside the applicable law for divorce, (which is actually relevant to this case), in this article we will give you basic information concerning what is referred to as matrimonial economic regimes.
Without becoming too technical, we can say that the matrimonial economic regime is the set of rules related to the economic and patrimonial relations between the spouses (as well as third parties) as a result of the marriage.
Thus, for example, in the matrimonial economic regime of separation of assets, each spouse retains the ownership and administration of their own properties and if this were to be your case, you would not have any rights over the property bought only by your husband using his money.
On the contrary, in the matrimonial economic regime of joint assets or community (gananciales, which is the common one in Spain), all the goods, gains obtained or acquired during the marriage, belong to both spouses.
There are other different regimes: participation, etc.
Therefore, your rights over your husband’s assets will depend on the matrimonial property regime governing your marriage.
At present, in Spain, the applicable matrimonial regime is established according to article 9.2 of the Spanish Civil Code, which states:
The effects of marriage shall be governed by the common personal law of the spouses at the time of contracting it; in the absence of this law, by personal law or the law of the habitual residence of any of them, chosen by both in authentic document granted before the celebration of marriage; in the absence of this election, by the law of the place of the common habitual residence immediately after the celebration of the marriage, and, in the absence of such residence, by that of the place where the marriage took place.
Therefore, if you have a common nationality, the matrimonial regime will be the one corresponding to your nationality.
If this is not the case, the one chosen by you in a pre-nuptial agreements, matrimonial agreements, etc. will apply.
In the absence of the above, the matrimonial regime of the place where you had your common habitual residence after the marriage will apply, which according to your query we understand would be Spain, and therefore, could apply to you the joint assets regime, and you would own half of the properties.
You should also know that with the aim of harmonising private international law within the countries of the European Union, the REGULATION (EU) 2016/1103 has been approved, which recognises that in the event that no law has been chosen as applicable by the spouses, (article 26), the matrimonial economic regime will be the one of the first common habitual residence of the spouses after the celebration of the marriage. In any case, this regulation will only be applicable to legal actions and documents formalised from January 29, 2019.
If you are married and want to know your rights and potential situation in the case of a divorce, or if you want to get married, and want advice on the economic implications during and after marriage, contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel:+34 966 426 185
E-mail: info@white-baos.com
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