I am Spanish and my fiance is English, we live in Valencia and we plan to get married in Spain later this year. Can we sign a prenuptial agreement in Spain or do we have to go to England? What law would apply in this case, Spanish or English law?
Dear reader, thank you for your inquiry.
First of all since you and your future husband do not share a common ‘national law’, because you are Spanish and he is English, we must take into account which is the country of residence of you as a couple (assuming it will be Spain), and where you are planning to be married, (in Spain as you have said).
You must know that since you both are residents in the Valencian Community; (considering that you are from Valencia and your future husband is a citizen of the European Union and resident in Valencia), we understand that the law to be applied is the Law of the Valencia Generalitat for Valencian Matrimonial Regime No. 10/2007 of March 20th (Ley de Régimen Económico Matrimonial Valenciano). This law sets out the applicable rules, and as we will show, it allows a kind of prenuptial agreement called nuptial agreement letter, (carta de nupcias / capitulaciones matrimoniales) giving considerable freedom to the parties as to the possible resolutions to be adopted in the event of divorce.
An example of the significance of this Law is found at Article 4, which states that the Valencian Matrimonial Regime will be established by the spouses with total and complete freedom in the nuptial agreement letter (capitulaciones matrimoniales) without further limitations.
If a prenuptial or nuptial agreement letter (capitulationes matrimoniales) is not signed then the “economic separation regime” will apply, – according to this regime the property and assets of each spouse will always belong to that spouse. Both spouses will own their own property and any assets acquired during the marriage will not de divided between them. This is the opposite of the previous regime of marital property –community of assets (bienes gananciales).
This economic separation regime is not the same as the English system where, under English law, a couple that has been married for many years would normally see all assets divided equally between the parties, regardless of who acquired them.
In Article 25 of the said Law 10/2007 it is emphasized that a prenuptial agreement can establish the economic system of marriage and any other agreements concerning property or other matters between the spouses or for themselves, their children already born and any future children, and will be effective during the marriage or after its dissolution ( divorce/separation), with no restrictions other than those set out in the Act.
Similar to an agreement drawn up by a couple in the event of a divorce by consent, we understand that this freedom to agree is always subject to a Court’s approval since it must take into account issues such as the interests of minor children, moral, etc.. A prenuptial agreement should be granted in writing before a public notary in order to avoid problems and to give the agreement higher ‘formality’ since the intervention of the notary can also be seen as a guarantee that the parties have reached agreement freely and of their own will
English law also provides for the possibility of a pre nuptial agreement being recognized, although it is true that there is some doubt as to the requirements these agreements must fulfill. Factors to be taken into consideration by an English Court such as whether independent legal advice was received before signing, a report specifying the assets belonging to each spouse before marriage and finally the agreement has to be signed some time before the marriage takes place.
Therefore, in your case, being the circumstance mentioned we understand that the law to be applied is the Law for Valencian Matrimonial Regime (Matrimonial Property). With this Law you can set out and establish your own matrimonial and economic arrangements you wish for your marriage and in anticipation of its breakdown.
Our advice to you is to obtain legal assistance to prepare a pre nuptial agreement or in this case (capitulaciones matrimoniales) that is valid and will protect your interests. The sooner this is done before the marriage takes place the better.
*The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.