The celebration of a marriage between two people is one of the most relevant events in a person’s life. And the consequences of not being properly advised when doing so, can be very severe. In today’s article we review some of the basic concepts related to this issue. What is a matrimonial property regime and a prenuptial agreement. The different types of compensations or alimony that exist in case of divorce. And whether it is possible to waive them beforehand.
Matrimonial property regime.
The matrimonial property regime is the set of rules that regulate the economic relations of the spouses. In Spain there are different matrimonial property regimes. Joint property. Separation of property. Participation system. According to Art. 1316 of the Civil Code, in the absence of an agreement, the default regime will be joint property.
Prenuptial agreements or marriage contracts.
By means of a prenuptial agreement, the spouses can choose the matrimonial property regime they want to apply to their marriage. For these agreements to be valid, they must be granted before a notary in a public deed. In addition to choosing the financial regime, these agreements may contain any other economic arrangements that the spouses have reached. Unless they are contrary to the law, morality, and public order (art. 1255 CC).
Divorce: Alimony and compensation for domestic work.
In the event of divorce, and depending on the specific circumstances of each case, the spouses may be entitled to different financial compensations/indemnities. The alimony of Art. 97 CC (when the divorce causes an economic imbalance to one of the spouses). Or the compensatory allowance of Art. 1438 CC (to compensate for work done for the household). The key question we ask ourselves today is the following: Is the prenuptial agreement that waives these compensations valid?
The case as argued.
Two spouses enter a prenuptial agreement in the presence of a notary and choose the regime of separation of property. They also agree not to claim anything from each other in the event of divorce. As so often happens, the break-up of the couple years later, and the subsequent contentious divorce, leads one of the spouses to claim the two aforementioned pensions from the other. In the first instance, the judge rejects this request, on the grounds that the waiver made by both spouses in the marital agreement is perfectly valid. At the 2nd Instance, the Provincial Court interprets that these compensations cannot be waived. And that one of the spouses is indeed entitled to alimony in the amount of €18,000 and compensation for domestic work of €30,000.
Ruling of the Spanish Supreme Court (TS).
By judgment 362/2023 of 13 March 2023, the Spanish Supreme Court has confirmed that this type of prenuptial agreement is perfectly valid. In other words: it is possible to waive any type of compensation or pension by means of a marriage contract. The high court argues that the principle of contractual freedom (Art. 1255 CC) and the freedom of contract between the spouses (Art. 1323 CC) allows the spouses to reach whatever agreements they deem appropriate in the sphere of their financial relations.
The only reason to question its validity would be the existence of a flaw in the consent. That is to say, if the consent had not been formed freely. However, in the case under consideration, this was not the case at all. The notary warned both parties when signing the marriage contract. Both spouses had previous marital experience (and the knowledge of what a marriage entails). The spouse who resigned had a personal, vital, and professional background (graduate and businesswoman) that prevented her from being described as the “weak or ignorant party”. Etc.
Being properly advised when signing a prenuptial agreement or initiating a divorce proceeding, is essential to avoid unpleasant surprises. At White-Baos Lawyers we are experts in Family Law. Do not hesitate to contact us. We will study your case and offer you expert advice on the subject.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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