Every marriage is subject to a matrimonial regime, which regulates the economic relations between the spouses, among other aspects, the form of contribution of each of them to family expenses, the rights of each spouse over the assets acquired by either of them during the marriage and consequently the rights, which correspond to each spouse, over said assets when the marriage is extinguished, either by divorce or by death.
The matrimonial economic regime can be agreed, through the deeds of matrimonial capitulations, and in the absence of an agreement it is determined by law.
In Spain, there are different matrimonial regimes, the most frequent is the community of property, and very similar to it, are the Aragonese regime of conjugal consortium or the Navarrese, called conquests, but the regime of separation of goods, as is the case of Catalonia and the Balearic Islands
The Notarial Regulation (article 159 RN) requires that the public deeds state the civil status of those who grant them, and must state if they are single, married, legally separated, widowed or divorced, and may also be stated at the request of the interested in their situation of union or separation in fact.
If the grantor is married, legally separated or divorced, and the act or contract affects or could affect in the future the patrimonial consequences of his current marriage, or, where appropriate, a previous one, the name and surname of the spouse to whom affected or could affect, as well as the matrimonial property regime.
These obligations give rise to the familiarity that exists in all notaries, with the matrimonial regime, since notaries are continually forced to inquire about the matrimonial regime that affects people who, being married, come to our offices.
The determination of this matrimonial regime can already be difficult, its difficulty increases when we are in the presence of people who are not of Spanish nationality and have not married in Spain.
A.- THE DETERMINATION OF THE MARRIAGE REGIME
The investigation of what is the specific matrimonial regime is made in accordance with the guidelines provided by article 9.2 of the Civil Code, and since January 29, 2009, also article 26 of Regulation (EU) 2016/1103 of the Council of June 24, 2016, which establishes enhanced cooperation in the field of jurisdiction, applicable law, recognition and enforcement of resolutions in matters of matrimonial regimes.
Article 9.2 CC, establishes that in the absence of an agreement, the regime will be that of the common nationality (or residence in the case of Spaniards), in the absence of it, that of the common habitual residence after the celebration of the marriage and lack thereof. that of the place of celebration of the marriage, while article 26 of Regulation (EU) 2016/1103 of the Council of June 24, 2016, establishes habitual residence as a preference criterion.
We must, in any case, remember that the matrimonial regime can be changed, but only through a deed of matrimonial capitulations. Changes of residence do not affect the matrimonial regime established in accordance with the criteria indicated.
As a consequence of these guidelines, it can happen that the economic regime of a marriage is not subject to Spanish law, which is the most frequent when it comes to people who are not of Spanish nationality, and who have married outside of Spain.
In an attempt to generalize, the marriage regime of people of Ibero-American origin is usually that of community or property, in the case of marriages of people from Muslim countries, it is usually that of separation of property and within European countries the casuistry is elderly.
B.- THE PUBLICITY OF THE MARRIAGE REGIME.
The matrimonial regime when it is agreed in matrimonial capitulations must be recorded (indicate the law) in the registration of marriage in the Civil Registry.
But, without a capitulation agreement, there is, until now, no publicity mechanism, other than the inscriptions that may be in the Property Registries, sometimes contradictory. In the geographical area of the "fringe of ponent", with the enormous interconnection of people between Catalonia and Aragon, it is very frequent that the acquisitions of property, made by married people, in Aragon are recorded with a different matrimonial regime than the acquisitions that are made in Catalonia.
This situation can be solved in some way when it comes into force, if the Civil Registry Law of 2011 does, which in its article 60 provides that, together with the registration of marriage, the legal or agreed matrimonial economic regime that governs the marriage will be registered. marriage and the pacts, judicial resolutions or other facts that may affect it.
It is also true that since Notaries have the competence to celebrate marriages, the information on the possible matrimonial regime is very exhaustive, although here in Catalonia, since the regime, in the absence of an agreement, is that of separation of property, they are not usually made. marriage contract.
C.- MODIFICATION OF THE MARRIAGE REGIME
As we have previously said, the matrimonial regime can be changed through a deed of marriage agreements that must be recorded in the civil registry, so that it is effective against third parties.
Once these capitulations have been granted when a spouse wants to carry out any act that could result in patrimonial consequences, they must show the notary the capitulation deed with a note of having gone through the civil registry, and based on it, the Notary will know if the consent of the other spouse is required or not.
The most common change is to go from a community regime to a separate property regime, which seeks that each spouse can act independently of the other.
D.- THE MODIFICATION OF THE MARRIAGE REGIME AND FOREIGNERS.
The approach to modifying the matrimonial regime can be more complex when the spouses are not Spanish, and have married outside of Spain. This complexity stems from the fact that, in accordance with the principles of personal and territorial connection formulated in article 15 of the Civil Registry Law and in accordance with the doctrine of the DGRN, the registration in the Spanish Civil Registry of marriages celebrated by foreigners outside of Spain only proceeds in the assumption that either of the contracting parties has subsequently acquired Spanish nationality and the marriage subsists (vid, Resolution of November 6, 2002).
In other words, the marriage not having been celebrated in Spain, the spouses being foreigners, there is no room for publicity of the capitulations through the Spanish Civil Registry.
E.- A REAL CASE.,
Recently, some Romanian spouses, whose marriage, in the absence of an agreement, is governed by a community regime, came very concerned, because they wanted only the husband to buy a place and mortgage it, and from the Bank's advice, they were required to do so Thus, that they agree to a property separation regime and that said agreement be registered in the Spanish civil registry, and that if they did not do so, the woman should also “sign”.
Faced with the requirement of a procedure that was impossible to execute, we had to speak with the bank's counsel and inform them of the resolution of the General Directorate of Registries and Notaries dated January 9, 2008, which reminds us that if both spouses are foreigners and the marriage is contracted abroad that registration of the capitulations in the Spanish Civil Registry cannot be required.
For this reason, they granted a deed of capitulation, agreeing to the separation of assets and the next day she was able to buy and mortgage only her husband, which was her true intention.