1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
The effects of marriage are governed by the common personal law of the spouses (determined by nationality and, if both of the spouses are Spanish, also by “vecindad civil”, which determines which of the various Spanish systems could apply) at the time the marriage was entered into. In the absence of such law, they are governed by the personal law or the law of the habitual residence of either of the spouses, as agreed by both spouses in an authentic instrument prior to the celebration of the marriage. If they have made no such choice of law, the effects of marriage are governed by the law of their common habitual residence immediately after the celebration of the marriage or, if there is no such residence, by the law of the place in which the marriage was celebrated (Art. 9 para. 2 CC).
Where it is not possible to determine the applicable law (i.e. for spouses with different vecindad civil who have made no agreement prior to the celebration of the marriage, who do not have a common habitual residence after the marriage and who have entered into marriage abroad), the conflict rule for marriages between Spaniards applies (Art. 16 para. 3 CC).
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
Only if the spouses are of different nationalities do they have a free choice of law. In accordance with the provisions described in 1.1, they may choose the law of either contracting spouse (i.e. the personal law of either of the spouses – see above – or the law of the habitual residence of either of the spouses at the time of the celebration of the marriage) (Art. 9 para. 2 CC).
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Couples in Spain
Current country: Germany