When couples decide to marry, they often overlook the importance of understanding the legal and financial implications of their chosen marital property regime. Many people are unaware of the potential consequences that may arise in cases of separation, divorce, or even death. Receiving the right legal advice before marriage not only helps avoid surprises, but it also allows both parties to make informed decisions to protect their assets and interests.
The Different Marital Property Regimes in Spain.
In Spain, there are various marital property regimes, with the most common being joint ownership and separate property. Under joint ownership, all assets acquired during the marriage are owned by both spouses (with some exceptions like gifts or inheritances). By contrast, under separate property, each spouse maintains sole ownership of any assets acquired during the marriage.
In general, if no prenuptial agreement is signed, joint ownership applies by default in Spain. This regime may also apply to UK nationals if their first marital residence after the marriage is located in Spain. Therefore, it is essential to understand these regimes and their implications to choose the best fit for each couple’s personal and financial situation.
Joint Ownership and Mortgage Payments Made Before Marriage.
A critical difference between joint ownership and separate property is how debts incurred before marriage are handled. Let’s consider the case of Mary and Peter, who marry under joint ownership. Mary has a mortgage with monthly payments of €500 prior to marriage. For the next 20 years, she continues to pay the mortgage, totalling €150,000.
In case of divorce, Peter could argue that half of Mary’s mortgage payments were contributed by him. Under joint ownership, there is a presumption that income and assets acquired during the marriage are jointly owned unless proven otherwise. This could mean that, in the event of divorce, Peter may have a claim against her for half of the payments, amounting to €75,000.
Joint Ownership and Rental Income from Individually Owned Properties.
It’s important to note that separate property owned before marriage does not become jointly owned when marrying under the joint ownership regime. For instance, if Peter owns three properties before marrying Ana, those properties remain solely his. However, many are unaware that rental income from these individually owned properties is considered joint income under joint ownership. Meaning that Peter (as owner) and Mary (as his spouse) share the rentals equally.
Conclusions.
No marital property regime is objectively better, as each couple’s personal and financial circumstances vary. The key is to be well-informed, examine each case carefully, and make conscious legal and financial choices. At White Baos Lawyers, we specialize in Family Law, Separation and Divorce, and Marital Agreements. For expert legal advice before marriage or in cases of potential divorce, please don’t hesitate to contact us.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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