When a couple decides to get married, it is not only about sharing their life together, but also about planning how the assets and obligations will be managed. Marital agreements (commonly referred to as prenuptial agreements in common law jurisdictions) allow these matters to be agreed in a clear and secure manner. In this article we explain what they consist of. Why they are so important. And how the applicable law influences their validity and effectiveness. Specially when the spouses are foreign nationals living in territories in Spain with their own regional civil law.
What are marital agreements in Spain?.
These agreements, that can be executed before or during the marriage, regulate the property aspects of their relationship. How assets will be managed. How they will be divided in the event of separation or divorce and how the rights of each spouse will be protected. Etc. Their main purpose is to prevent future disputes and provide legal certainty.
Applicable law. EU Regulation 2016/1103.
Regulation (EU) 2016/1103 establishes, in its Article 22, that spouses may choose the law applicable to their matrimonial property regime, among the following laws:
-. The law of the State in which the spouses or future spouses, or one of them, have their habitual residence at the time the agreement is concluded, or
-. The law of the State of nationality of either spouse or future spouse at the time the agreement is concluded.
Now, what happens when the spouses are foreign nationals and have their habitual residence in a territory in Spain with its own regional civil law? That is, the Balearic Islands, the Basque Country, Catalonia, Navarra, etc. Can they opt for the specific civil law of that territory?
The concept of “Civil Regional Affiliation”.
Civil regional affiliation is the legal link that a person has with a territory within Spain. It determines which civil law is applicable to them. It is generally acquired by birth and can be changed by express choice or by legal changes provided in the Law. This concept should not be confused with habitual residence. A Spanish citizen may live in region of Spain and have civil regional affiliation in another.
In matters of prenuptial agreements, civil regional affiliation is especially relevant in territories with their own regional civil law. As it affects the rules governing the matrimonial property regime.
Foreign nationals, marital agreements, and civil regional affiliation.
When spouses are foreign nationals and establish their habitual residence in territories with regional civil law, questions arise. The application of the regional law to foreigners is not always clear. The General Directorate of Registries and Notaries (DGRN), which supervises the uniform interpretation of registration and notarial rules in Spain, tend to be reluctant to admit the application of regional civil law to foreigners, since they lack civil regional affiliation.
However, some court rulings interpret that foreign spouses, even when lacking civil regional affiliation, may choose to apply regional civil law in their marital agreements. This interpretation considers that the spirit of EU Regulation 2016/1103 (a supranational rule) is that the parties’ will prevails over limitations of domestic law.
In any case, it is a very debated matter.
Conclusion
At White Baos Lawyers, we are experts in family law and marital or prenuptial agreements. If you and your spouse wish to execute these agreements, do not hesitate to contact us for professional and personalized advice.
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
E-mail: info@white-baos.com
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