Spouse buying property in case of “marital separation in fact” (Spanish Law)

Spanish law query: Can one spouse buy and register a house in the case of a “marital separation in fact”?

If the matrimonial property is the community of property, this community continues to exist as long as there is no legal separation of the spouses or the dissolution of marriage by divorce or death of any of them (Art. 1392 Civil Code). Therefore, any property that either spouse acquired before the dissolution of the matrimonial regime, will be integrated within it and when to liquidate the company will have to be included in the inventory of all assets are split.

Consequently, the fact that there has been a de facto separation of the spouses (temporary or permanent), does not prevent the goods they buy are marital.

This is the general rule that must be taken into account, and therefore it is advisable to regularize the situation by granting marriage contract, if there is agreement between the spouses, or by filing the lawsuit for marital separation.

Notwithstanding the foregoing, may be some clarification:

  • In particularly serious cases, separation of fact for many years, there are judgments of the courts to recognize that what may be proprietary purchased the spouse who buys it. But those are not to serve as a general guideline.
  • All that is acquired free of charge (i.e., by gift, inheritance, unpaid assignment, etc) Has the exclusive character of the receiving spouse, even if you are married in community of property
  • If the purchase is made by a spouse stating that the money you invest in it is privative in nature (e.g. Because it justifies that money received by inheritance or donation, or that the money comes from the sale of a privative asset) , in which case the property you buy, but is in effect the conjugal partnership, will be privative. The justification that the money invested in the acquisition is privative must be documented, not only a simple statement or declaration of the buyer. And usually done by filing a previous writing inheritance or donation, in which up receiving money, or sales above deed, in which the spouse is listed as seller of a privative asset.

David Lorenzo-Spanish Lawyer UK

Spanish Law | Birchall Blackburn