Matrimonial Property Regimes in Spain: Community vs. Separation (Arts. 1315-1444 CC)

Matrimonial Property Regimes: Concept and Choice

The matrimonial property regime governs the financial relationships between spouses and between them and third parties during marriage and upon its dissolution. In Spain, the Código Civil (Civil Code) (arts. 1315–1444) establishes the sociedad de gananciales (community property regime) as the default first-degree regime for territories governed by common law, although spouses may agree on a different regime through capitulaciones matrimoniales (prenuptial or postnuptial agreements) (art. 1315 CC).

The Sociedad de Gananciales: Community Property Regime (Arts. 1344–1410 CC)

Asset Pool: Community Property

Article 1347 CC enumerates community assets (those that become jointly owned):

• Assets obtained through the work or professional activity of either spouse during the marriage
• Fruits, income, and interest generated by either separate or community property
• Assets acquired for valuable consideration at the expense of the common estate
• Assets acquired through a right of first refusal of a community nature
• Businesses founded during the marriage, or whose shares are acquired with community funds

Separate Property (Art. 1346 CC)

The following are the separate property of each spouse:

• Assets and rights belonging to them at the time of marriage
• Assets acquired after marriage by gift, inheritance, or bequest
• Assets acquired at the expense of their separate estate, even during the marriage (principle of real subrogation)
• Compensation for personal injury suffered by a spouse, except for the portion allocated to cover shared expenses
• Personal work tools (art. 1346.8 CC: a professional may dispose of their tools without the other spouse's consent)

Presumption of community ownership (art. 1361 CC): Assets acquired during the marriage are presumed to be community property unless proven to belong exclusively to one of the spouses.

Liabilities and Debts of the Community (Arts. 1362–1374 CC)

The following are community charges (payable from the common estate):

• Maintenance and education of joint children and children of one spouse with the express consent of the other
• Debts incurred by both spouses or by one with the other's consent
• Debts incurred by one spouse in the exercise of household management powers

Liability towards third parties (art. 1367 CC): Community assets are liable for debts incurred by both spouses or by one with the other's consent; however, if one spouse acts alone in management or contracting, that spouse's own assets are primarily liable, with community assets liable only subsidiarily.

Administration and Disposal (Arts. 1375–1391 CC)

Both spouses have equal management powers. Acts of disposal of community assets (such as sale or mortgage) require the consent of both spouses (art. 1377 CC). Actions to annul disposals made without consent must be brought within 4 years (art. 1301 CC).

Dissolution and Liquidation of the Community

The community property regime is dissolved (art. 1392 CC) by: annulment of the marriage, judicial separation or divorce, agreement between the spouses, or a court order at the request of one spouse. The procedure is as follows:

1. Inventory of assets and liabilities (both community and separate)
2. Payment of debts from community assets
3. Reimbursement of separate funds invested in common expenses (participation credit)
4. Equal division of the remainder (art. 1404 CC)

The Supreme Court (Tribunal Supremo, TS) judgment of 21 September 2020 clarified that a property acquired with a mortgage before the marriage and continued to be paid for with community funds during the marriage generates a participation credit proportional to the amount repaid with community funds.

Separation of Property Regime (Arts. 1435–1444 CC)

Under the separation of property regime, each spouse retains full ownership and management of all assets acquired both before and during the marriage (art. 1437 CC). There is no common estate.

Matrimonial expenses (art. 1438 CC): Both spouses must contribute to meeting matrimonial expenses according to their respective resources; moreover, work carried out in the home is deemed equivalent to an economic contribution; the Supreme Court judgment of 14 July 2015 recognised a financial compensation for a spouse who worked in the home for 20 years (art. 1438 CC, broadly interpreted).

Presumption of equal ownership: Movable assets without documentary title are presumed to belong to each spouse in equal shares (art. 1441 CC).

The Catalan Regime (Separation of Property as Default)

In Catalonia, the Codi Civil Català (Catalan Civil Code) (arts. 232-1 to 232-48 CCCat) establishes separation of property as the default regime (not the community property regime). The Catalan regime includes participation in gains as an agreed alternative and regulates participation credits in a specific manner. Compensation for domestic work is governed by art. 232-5 CCCat.

Capitulaciones Matrimoniales: Matrimonial Agreements (Arts. 1325–1335 CC)

Spouses may establish, modify, or replace the matrimonial property regime through capitulaciones matrimoniales executed in a public deed before a notary (escritura pública) (art. 1327 CC). These may be entered into:

• Before the marriage (prenuptial agreements)
• During the marriage (change of regime), taking effect from the date of the deed, except as against bona fide third parties

Registration: Matrimonial agreements relating to immovable property must be registered in the Registro de la Propiedad (Land Registry) to be enforceable against third parties (art. 1333 CC).

Conclusion

The choice of matrimonial property regime is a legal decisión with significant financial consequences, particularly in divorces involving business or real estate assets. A lawyer should advise clients on the implications of each regime before marriage, or recommend a change of regime when circumstances change.

Lexiel enables you to search Supreme Court case law on the dissolution and liquidation of community property, and to draft convenios reguladores (divorce settlement agreements) or matrimonial agreements with verified citations.