2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
Spain does not have only one matrimonial property regime or body of legislation, so these answers will specifically relate to the Spanish Civil Code (with the exception of the discussion of the legislation of the autonomous communities in 2.7).
The applicable matrimonial property regime is that which the spouses have stipulated in a marriage contract (Art. 1315 CC) (community of acquisitions (sociedad de gananciales), separation of property or participation). In the absence of a contract, the applicable matrimonial property regime is community of acquisitions Art. 1316 CC).Under this system, the acquisitions and benefits obtained by each of the spouses while the system is in effect are common and are divided equally when the regime is dissolved (Art. 1344 CC). The system provides for the existence of both personal and community property and allows personal property to become community property and vice versa by means of an agreement between the spouses in the form of an authentic act. Assets which are considered to be personal are listed in Article 1346 CC. They include assets which the spouses brought into the marriage and those which they have acquired gratuitously during the marriage.
Assets which are considered to be community property are listed in Article 1347 CC. As regards the disposal of assets, each spouse may freely dispose of his/her own assets and is not responsible for the debts of the other (Art. 1373 CC).
2.2. Are there legal assumptions concerning the attribution of property?
There are legal presumptions concerning the attribution of property in the community of acquisitions regime (community property is presumed unless otherwise proved (Art. 1361 CC).
2.3. Should the spouses establish an inventory of assets? If so, when and how?
It is not necessary to compile an inventory of assets and liabilities before the celebration of the marriage, but it is useful. An inventory is, however, required after the dissolution of the community of property and before its liquidation (Art. 1396 CC). It is also required if the community of acquisitions regime is dissolved by legal decision and there is an ongoing dispute concerning the existence of the cause of dissolution (Art. 1394 CC).
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
The administration of community property (acquisitions) is regulated by Articles 1375-1391 CC. Each spouse administers his/her own personal assets (although there are special provisions regarding the family home, according to which the agreement of both spouses is always necessary (Art. 1320 CC). Common assets are administered by both spouses jointly (Art. 1375 CC), unless they agree otherwise in a marriage contract. In principle, the spouses may freely dispose of their personal assets during the marriage.
One spouse may administer and dispose of community property alone in the exercise of domestic authority (Art. 1319 CC and Art. 1365 CC), with the exception of the family home (even if it belongs to only one spouse, the consent of the other is necessary (Art. 1320 CC)).
2.5. Are any legal transactions made by one spouse also binding on the other?
In cases which do not fall under the scope of domestic authority, the consent of both spouses is necessary for the disposal of community property, although in certain circumstances consent can instead be given by the courts (Art. 1377 CC). In the absence of consent, the other spouse may have such acts of disposal reversed (Art. 1322 and 1377 CC). If the disposal is gratuitous, the consent of both spouses is always required, otherwise the disposal is null and void (Art. 1378 CC). The Code also governs fraudulent acts against the rights of the other spouse (Art. 1391 CC).
Any transaction carried out by one spouse is only binding on the other spouse if the latter expressly or tacitly confirms this. Otherwise the transaction may be reversed (Art. 1322 CC), and in the event of fraud, may be rescinded (Art. 1391 CC).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
Individual debts of one spouse are his/her responsibility and only his/her personal property may be used to satisfy these debts, but if this is insufficient creditors may claim his/her share of the community property (Art. 1373 CC). In such cases the community of property is dissolved, from which point the separation of property regime will apply between the spouses(Art. 1374 CC).
The community property may be used to cover marital expenses (Art. 1318 CC)and the needs of the family, the ordinary administration of assets and the exercise of the profession or occupation of the spouses (Art. 1362 CC). Debts incurred by one spouse in the exercise of domestic authority may be satisfied from the community property, the personal property of the debtor spouse and, subsidiarily, the personal property of the other spouse (Art. 1319 CC). The community property may always be used by the creditors (Art. 1365 CC). A spouse who has paid a community debt using his/her personal property is entitled to be reimbursed from the community property (Art. 1364 CC).
There are also statutory matrimonial property regimes in the autonomous communities (regions):
- Aragón: Freedom of contract applies (Art. 195 Código Civil Foral de Aragón). The applicable regime (either separation of property (Art. 203-209) or the consorcial aragonés, which is similar to community of acquisitions) may be determined by a marriage contract in the form of an authentic instrument. In the absence of a contract, the consorcial aragonés applies (Art. 210-270 Código Civil Foral de Aragón).
- Cataluña: In the absence of a contract, the separation of property regime applies (Art. 231-10 Civil Code of Cataluña). It is governed by Art. 231-11 to 231-30 Civil Code of Cataluña.
- Baleares (Balearic Islands):): In the absence of a contract, the separation of property regime applies (Art. 67 Compilación Baleares).
- Navarra: The spouses may stipulate separation of property or universal community of property. In the absence of a contract, the sociedad familiar de conquistas applies, which is a community of acquisitions regime similar to the sociedad de gananciales provided for in the Civil Code (Ley 82 de Compilación Navarra).
- País Vasco (Basque Country): According to Art. 93-111 Ley De Derecho Civil Foral Pais Vasco, the spouses are free to conclude a marriage contract. In the absence of a contract, the regional regime (the comunicación foral) applies, which is a universal community of property regime (regulated in Art. 93-111 Ley De Derecho Civil Foral Vasco). However, in exempted regions (Art. 6 Ley Derecho Civil Foral de Vizcaya, the regional civil law of Biscay), the common Spanish law applies (sociedad de gananciales as set out in the Civil Code, in the absence of a contract).
- Galicia: The applicable property regime is determined by the marriage contract. In the absence of a contract, sociedad de gananciales applies (Art. 171 Ley Derecho Civil de Galicia).
- Valencia: Complete freedom and equality applies between the spouses, who are free to conclude a marriage contract. In the absence of a contract, separation of property applies (Ley de Régimen Económico Matrimonial Valenciano).
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