INTERNATIONAL MATRIMONIAL PROPERTY REGIMES IN SPAIN

When a marriage involves different nationalities, several countries of residence or assets located abroad, determining which matrimonial property regime applies can become complicated.

The rules governing a couple's assets vary considerably from one country to another. It is therefore important to establish which law governs the marriage, which courts have jurisdiction and how the couple's assets should be divided in the event of divorce, separation or the death of a spouse.

I am Laura Rincón, a family lawyer based in Madrid. I advise clients on international family law matters involving Spain and other countries, including matrimonial property regimes, financial arrangements between spouses and the division of assets following divorce.

Legal assistance is available in English and Spanish, both in person and online.

What is an international matrimonial property regime?

A matrimonial property regime determines how spouses' assets and financial obligations are governed during marriage and how their property is dealt with when the marriage ends.

When a marriage has an international element, it is not always clear which country's law applies. The answer may depend on the spouses' nationalities, where they lived after getting married, whether they signed a matrimonial property agreement and when the marriage took place.

For example, a couple may have married in one country, subsequently moved to Spain and purchased property in several countries. In these circumstances, it is important to determine which law governs their matrimonial property regime before deciding how their assets should be divided.

The relevant legal framework may include Council Regulation (EU) 2016/1103, which establishes rules on jurisdiction, applicable law and the recognition and enforcement of decisions concerning matrimonial property regimes in participating EU Member States. Its application depends on the circumstances of the case and the relevant transitional rules.

Which courts have jurisdiction over an international matrimonial property dispute?

One of the first questions is determining which country's courts are competent to deal with the matrimonial property regime.

Under Regulation (EU) 2016/1103, jurisdiction may be connected to proceedings concerning divorce, legal separation or the death of a spouse.

For example, in certain circumstances, the court dealing with divorce proceedings may also have jurisdiction over the related matrimonial property issues. Similarly, a court dealing with succession proceedings following a spouse's death may have jurisdiction over connected matrimonial property matters.

Where these rules do not determine jurisdiction, other criteria may apply, including the spouses' habitual residence and, in certain circumstances, their common nationality.

The appropriate court must be identified by examining the facts of the case and the applicable jurisdictional rules. The fact that a couple has assets in Spain does not, by itself, necessarily mean that Spanish courts have jurisdiction over every dispute concerning those assets.

Which law applies to an international matrimonial property regime?

The law governing the matrimonial property regime determines how the spouses' assets are classified and how the regime is dissolved and liquidated.

Can spouses choose which law applies?

In certain circumstances, spouses or future spouses can agree on the law governing their matrimonial property regime.

Under Article 22 of Regulation (EU) 2016/1103, where the Regulation applies, the choice is generally limited to the law of a country where either spouse is habitually resident when the agreement is made, or the law of a country of which either spouse is a national at that time.

The agreement must satisfy the applicable formal requirements, including the requirements concerning its written form, date and signatures. Additional formal requirements may apply depending on the circumstances.

Choosing the applicable law is not the same as choosing a matrimonial property regime under that law. Both issues should be considered when preparing a matrimonial property agreement.

What happens if the spouses have not chosen the applicable law?

Where the Regulation applies and the spouses have not made a valid choice, Article 26 establishes connecting factors to determine the applicable law.

As a general rule, the starting point is the law of the country where the spouses established their first common habitual residence after marriage. If there was no such residence, the rules may refer to their common nationality at the time of marriage or, failing that, the country with which they jointly had the closest connection at that time.

There are exceptions and specific rules that may affect the outcome. The date of the marriage and any agreement selecting the applicable law are particularly important when determining whether the Regulation's rules apply.

What does the applicable law determine?

The law governing the matrimonial property regime may determine, among other matters:

  • Which assets belong to each spouse individually and which form part of the matrimonial property regime.

  • How assets and debts are treated during the marriage.

  • Whether assets can move between different property categories and the consequences of those transfers.

  • How the matrimonial property regime ends following divorce, separation or death.

  • How the matrimonial estate is divided or liquidated between the spouses or, where relevant, in connection with succession proceedings.

Where Regulation (EU) 2016/1103 applies, the law designated under its rules generally governs all assets falling within the matrimonial property regime, regardless of where those assets are located.

This can be particularly relevant where a couple owns real estate, bank accounts, investments or other assets in more than one country.

How I can help with an international matrimonial property matter

International matrimonial property cases require a careful assessment of the applicable law, the competent courts and the assets involved.

I can advise you on:

  • Determining the applicable matrimonial property regime where the marriage involves different nationalities or countries of residence.

  • Reviewing matrimonial property agreements and assessing the law governing the spouses' financial relationship.

  • International division of assets following divorce, including cases involving property or financial assets abroad.

  • Identifying the appropriate court and legal procedure for matrimonial property disputes connected with divorce or succession.

  • Assessing the treatment of assets and debts under the applicable law before a settlement or court claim is pursued.

Each case must be assessed individually. The countries involved, the date of the marriage, the spouses' habitual residences, their nationalities and any existing agreements may all affect the legal analysis.

Need advice on an international matrimonial property regime?

If you are married to someone of another nationality, live in Spain but own assets abroad, or need to divide matrimonial property following an international divorce, I can help you understand the applicable legal framework and your options.

Laura Rincón | Family Lawyer in Madrid

Legal assistance in English and Spanish. In-person appointments in Madrid and online consultations.

Contact me to discuss your case.