Purchase of properties in Spain by married persons under marriage economic regime subject to foreign law
When buying a property for married people whose marriage is subject to a foreign economic regime, it is important to analyse, and record the specific regime that applies to such acquisition, to avoid future problems in the validity of the purchase or its subsequent sale.
Although the Notary does not know the content of the foreign law, must state in the deed what is the norm applicable to the patrimonial relations between spouses.
- Thus, when foreign acquiring spouses have the same nationality, their matrimonial economic regime, in the absence of a pact, will be the legal regime corresponding to their common national law.
It is convenient, not only to record the applicable law, but also the content of it, if we are faced with a regime of separation of property, community of property, participation in profits, and of course if the spouses have signed agreements or pacts that modify the legal regime of supplementary application.
- In the case of spouses of different nationalities, the connection criteria that determine the conflict rules of Spanish private international law must be applied, in order to know the legislation applicable to the purchase. The general rule is that the law of the place of common habitual residence subsequent to the celebration of marriage will be applied.
- In the case of married foreign spouses in a system of community of property or equivalent regime, when the property is acquired privately (with private means) by one of the spouses, the non-purchasing spouse can make an statement on this sense, agreeing with the private purchase by the other party. But, careful, when the sell of the property it shall be proven that the law or foreign law of application allows the acquisition of property privatively by one of the spouses.
New regulation of the European Union
For those marriages celebrated from 29 January 2019, Regulation (EU) 2016/1103, of June 24, 2016, will be applied to marriages celebrated from 29th January 2019, to determine the applicable law in matters of economic-matrimonial regimes.
In the absence of the spouses’ choice (through covenants or matrimonial chapters), the law applicable to the marriage shall be: (1) that of the common habitual residence of the spouses immediately after the marriage; (2) in its absence, that of the common nationality at the time of the celebration of the marriage; (3) in the absence of the two previous ones, the applicable law shall be that of the State with which the spouses have a closer relationship, taking into account all the concurrent circumstances.
The sale of properties in Spain subject to foreign marriage regime
- If at the time of registering the purchase the applicable law was NOT stated, it will be necessary to prove the foreign legislation applicable to the case and that this law allows the sale to be made by one of the spouses, for example, or if both spouses will have to appear before the Notary to consent to the sale.
- If the applicable economic regime was indicated in the purchase, the sale may be carried out with the consent of both spouses or the consent of only one of them, when the foreign legislation allows a property acquired during the marriage to be sold only by one of the spouses, which must be accredited. Especially when it comes to selling the family home.
To avoid future problems in the case of purchases and sales of real estate in Spain by foreign marriages it is advisable to carefully analyse the law applicable to that sale.