When buying and selling real estate in Spain by married foreigners is desirable and should be carefully examined the problems and consequences that may arise resulting from the application of different foreign matrimonial regimes to the purchase or sale.
Firstly, the applicable foreign matrimonial regime must be accredited and therefore its practical consequences on the specific legal business, either at the time of purchase or sale of the property:
a) At the time of the acquisition: It is only need to record the matrimonial regime for the Spaniards, without prejudice to state the foreigners matrimonial regime if they manifest it or it is known by the notary himself.
In the United Kingdom, and generally in the Common Law, there is an absence of regime, so the notary can assert that fact known by notoriety.
b) At the time of the sale:In the event of sales by foreigners married to someone of the same nationality, it is necessary to prove the matrimonial regime in accordance with their common national law.
In the case of marriages of people of different nationality the matrimonial regime will be determined by the statements of the spouses and the Spanish international laws.
Thus, the regime provided for by a foreign law will apply, in which case it will suffice to specify the law, or Spanish law will be applicable, in which case it will be necessary to resort to the general rules for Spaniards. Prenuptial agreements or “capitulaciones matrimoniales” by foreigners before Spanish notary is fully valid and endows legal security to the relations between both.
c) It is important to note that it is unnecessary to prove the matrimonial regime if both spouses appear personally to sign the purchase or the sale.
But, if at the time of sale only appear one spouse, then it will be necessary to prove that indeed this spouse can sell by itself, without the other spouse permission and according to its legal matrimonial regime and laws, for the purpose of safeguarding the rights of the other spouse.
Other peculiarities relating to foreign economic regimes are that there are cases (for example Mexico and other countries) where in the marriage certificate already spouses have to opt for a specific regime (separation of assets, profit sharing, etc..).
In common law countries, there is no proper supplementary economic marriage regime, but the separation of property results from the fact that the conclusion of the marriage does not affect the attribution of property, whether acquired before or during the marriage.
Finally, discuss the problems of personality accreditation for foreign spouses changing their family name, renumbering of passports or identity cards, change of surname through marriage, etc.
Problems often appear to identify foreign spouses, when their identity documents are not listed in the Property Register or when the number of the new passport does not match the previous one (which happens in many countries) or the order of the surname or even the last name has changed to have adopted the husband one. In these cases is for the notary to attest that, notwithstanding such changes, the person appearing to sell the property is the same.
The problem occurs because unlike Spain, where even if the passport or DNI is renewed, the same number is always preserved, and the surname is not changed by marriage, not all countries keep passport numbering whenever it is renewed, for that reason it is advisable to avoid further problems by filing in the public deed of purchase a testimony of the identity document exhibited at that time by the foreign citizen.