The legal framework
The Civil Code (articles 1315 to 1444) lets spouses choose their regime by marriage contract (capitulaciones) and applies by default the sociedad de gananciales: salaries, income and everything acquired for value during the marriage are common; property owned before, and anything received by inheritance or gift, stays private. Catalonia and the Balearics apply separation of property by default (with compensation for domestic work in Catalonia), Aragon the conjugal consortium, Navarre the society of conquests and the Basque Country the communication of assets in certain cases; the applicable law depends on the spouses' regional civil status and their first common domicile. The family home cannot be sold or mortgaged without the consent of both (article 1320), whatever the regime and whoever owns it. Spain applies the EU Matrimonial Property Regulation 2016/1103 to marriages celebrated since 29 January 2019: the law of the first common habitual residence, unless the spouses choose otherwise.
England and Wales have no matrimonial property regime at all — everything is decided by the court on divorce — so British couples rarely realise that settling in Spain places them, by default, under a community of acquisitions: what either earns and buys after the move is jointly owned, and the villa bought with one spouse's savings is common if it was acquired for value during the marriage and the funds cannot be traced. Conversely, a couple who married in the UK and moved later keeps English 'non-regime' status under the EU regulation's first-residence rule, which Spanish notaries and courts will apply if it is proved.
The practical answer is a notarial contract: Spanish notaries draw up capitulaciones choosing separation of property or gananciales for about 200 euros, and the EU regulation allows a couple to choose the law of the nationality or residence of either spouse. British couples who own property in both countries should decide the regime before buying, and keep proof of the origin of private funds.
Key points
| Default regime (common law) | Community of acquisitions: earnings and acquisitions during the marriage are common; property owned before, inheritances and gifts stay private |
|---|---|
| Catalonia and the Balearics | Separation of property by default; in Catalonia, compensation for work in the home on dissolution |
| Aragon, Navarre, Basque Country | Conjugal consortium, society of conquests, communication of assets: variants of community |
| Marriage contracts | Before a notary, before or during the marriage; recorded at the Civil Registry to bind third parties; a change does not prejudice earlier creditors |
| Debts | Common assets answer for debts incurred for family needs by either spouse; private debts are paid first from private assets |
| Family home | Consent of both spouses to dispose of it, whoever owns it (article 1320) |
| Liquidation | On divorce, separation or death: inventory, payment of debts, division in halves; by agreement (notarial deed) or by the court |
| International couples | EU Regulation 2016/1103 for marriages since 2019: law of the first common habitual residence, or the law chosen by the spouses |
In practice
- Before the wedding, decide with the notary: gananciales (protects the spouse who earns less or stops working) or separation (protects earlier assets, a business, or against the other's debts); the contract costs less than 200 euros.
- During the marriage, changing regime requires a notarial contract and does not affect earlier debts; the liquidation of the community accumulated so far is done in the same deed.
- Keep proof of the origin of private assets (inheritances, earlier savings) to defeat the presumption that everything is common.
- On divorce, the liquidation can be included in the settlement agreement or handled separately; valuation of assets is the usual battleground.
- A British couple who married before moving may ask the notary to record that English law governs their property under the EU regulation, or choose Spanish law expressly; unmarried couples have no regime at all and only a notarial agreement organises shared property.
Cost and coverage
Marriage contract 100 to 300 euros before a notary; liquidation of the community by deed 300 to 1,500 euros depending on the assets (plus tax if one spouse receives more than half); contested judicial liquidation far more expensive.
Recent changes
Law 8/2021 adapted the rules for people with disabilities; the EU regulation of 2016 allows international couples to choose Spanish law. Supreme Court case law has refined the compensation for domestic work under separation of property (article 1438).
Where to go
- Notaries (General Council of Notaries): contracts and liquidations.
- Civil Registry: recording of marriage contracts.
- Courts of first instance: contested liquidation.
- Ministry of Justice — information on marriage and property regimes.
Worth knowing
Under separation of property, the spouse who ran the home may claim compensation for domestic work on divorce (article 1438 of the Civil Code, with its own rules in Catalonia): a little-known right the Supreme Court has applied since 2011 without requiring the other spouse to have been enriched. And for the British: there is a regime, whether you chose one or not — find out which before you buy or sell.
Frequently asked questions
We married in England and retired to Spain: which law governs our property?
If you married before 29 January 2019, Spanish courts apply Spanish private international law, which looks first to common nationality — English law, meaning no fixed regime — and Spanish notaries generally accept that. If you married after that date, the EU regulation designates the law of your first common habitual residence, again English law for a couple who lived in England first. Either way, a Spanish notarial deed recording the applicable law avoids arguments when selling a property or on death.
Is our Spanish home jointly owned even though only my name is on the deed?
Under gananciales, yes, if it was bought for value during the marriage — the Land Registry entry will usually say so ('con carácter ganancial'). Under English law or Spanish separation of property, no: it belongs to the person named, subject to a claim on divorce. In all cases, the family home cannot be sold without both spouses signing.
Can we change regime after years of marriage?
Yes, at any time, before a Spanish notary, with the liquidation of the community accumulated so far in the same deed; there is no court involvement and no waiting period. The change is recorded at the Civil Registry and does not affect debts already incurred.
Official sources and links
- Civil Code — Title III, matrimonial property regime — BOE
- General Council of Notaries — marriage contracts — information
- Regulation (EU) 2016/1103 — matrimonial property regimes — EUR-Lex
- Administración General del Estado — administracion.gob.es — official portal of Spanish public services, with pages in English
- Boletín Oficial del Estado (BOE) — Spanish legislation, official and consolidated texts
- British Consulates in Spain — gov.uk — living in Spain guide, consular help, lists of English-speaking lawyers