Question:
I intend to marry my current partner. We are both expatriates ( non Spanish) living in Spain, I am British, whilst my partner is not. Could we sign a prenuptial agreement? If so would it be possible to do so now, before getting married? How would we do it?
Answer:
Dear reader, thank you for your consultation.
Though both of you are of different nationality, if you both reside in Spain at the time of the marriage, the law applicable to your marriage should be Spanish Law.
Regarding which law would apply, it could be the common and general Spanish Law, ie the Spanish Civil Code and national regulations for marriages, family law, etc., or the foral law, which is the special law of some areas of Spain, which have their own family law, like Cataluña, Comunidad Valenciana ( Alicante, Valencia and Castellon), etc.
If in your case the common law applied, (national common regulation for the whole of Spain less the communities with their own law), then it is possible to grant a prenuptial agreement, ( capitulaciones matrimoniales. These are regulated in the Spanish Civil Code, articles from 1325 to 1355.
It must be highlighted
From these articles and regulations, it must be highlighted that:
The prenuptial agreements could be granted and signed before or after the marriage.
To be legally valid, the prenuptial agreements must be on a public deed, granted in front of a notary, and these agreements could not be against the law, customary practice or limit the spouse’s right to equality.
It must be noted on the marriage registration in the Civil Registry that the prenuptial agreement has been granted if it modifies the marriage’s economic regime.
In your question you say you want to grant and sign a prenuptial agreement now, before the marriage. As per the article 1334 of the Civil Code, you may grant it, but for it to have effect you must be married within 1 year.
If you have any query about prenuptial agreement or family law in Spain, we can assist you.
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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)
Tel:+34 966 426 185
E-mail: info@white-baos.com
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