Prenuptial agreement in Spain

Divorce proceedings can be complex, especially when it comes to the division of property. In Spain, the process and outcomes can vary significantly depending on the region and whether a prenuptial agreement is in place. Understanding the regional differences and the benefits of prenuptial agreements can greatly assist in navigating these waters.

Spain is divided into different autonomous communities, each with its own set of rules regarding property division in the event of a divorce. Generally, Spanish law distinguishes between two property regimes: community property (“sociedad de gananciales”) and separate property (“separación de bienes”).

1. Community Property (Sociedad de Gananciales):
   Under this regime, which is common in regions like Andalusia, Castile-La Mancha, and Valencia, assets acquired during the marriage are considered jointly owned by both spouses. Therefore, upon divorce, these assets are typically divided equally. This includes salaries, properties bought during the marriage, and other forms of income.
2. Separate Property (Separación de Bienes):
   In regions such as Catalonia and the Balearic Islands, this regime applies. Each spouse retains ownership of the assets they brought into the marriage or acquired independently during it. In a divorce, each spouse keeps their separate assets, and only jointly acquired property is divided.
3. Mixed Regimes:
   Some regions offer a hybrid approach or allow couples to choose their preferred regime either before or during the marriage. For instance, in the Basque Country, couples can opt for the ‘Conquered Property’ (bienes conquistados) system, a variant of the community property regime that provides a different method of assessing which assets are subject to division.

Prenuptial agreements are not as common in Spain as in some other countries, but their popularity is growing. These agreements allow couples to define their own marital property regime, different from the regional default. A prenuptial agreement can specify which assets will be considered separate property and how any potential division should occur upon divorce. This tool is especially useful for protecting inheritances, pre-marriage assets, and personal business interests.

The primary benefit of a prenuptial agreement is that it provides clarity and security for both parties, reducing potential conflicts in the event of a divorce. It allows couples to:

• Protect individual assets.
• Ensure fair treatment of both parties.
• Simplify divorce proceedings.
• Protect family businesses and inheritances from division.

To ensure that a prenuptial agreement is legally binding in Spain, it must be:

• Formally drafted by a lawyer.
• Signed before a notary.
• Registered officially.

It is advisable for each party to seek independent legal advice to ensure that the agreement is fair and sustainable, and that it complies with Spanish law.

Navigating the division of property in a divorce in Spain can be a daunting task due to the regional differences in law and the complexities of marital property regimes. Prenuptial agreements offer a viable solution to preemptively manage these issues, providing peace of mind and legal protection to both parties. The team of skilled lawyers at Lusa Legal is equipped to draft and register of your prenuptial agreements, as well as handle all aspects of divorce proceedings. We ensure that our clients are well-prepared and supported throughout the process, making it as smooth and equitable as possible.