In Spain, except in Catalonia and the Balearic Islands, when two people get married, this, in the absence of an agreement, is governed by a community regime, such as the community of property, the Aragonese consortium or the Navarrese conquest regime.
For this reason, except in those places, when marriage agreements are granted, it is normally to agree on a regime of separation of property, to the point that there is a certain identification in the imagination of people, between marriage agreements and separation of property.
It is said "I have made capitulations" as equivalent to "I have agreed to separation of property".
In Catalonia and the Balearic Islands there is separation of assets
On the contrary, in Catalonia and the Balearic Islands, as the supplementary matrimonial economic regime is the one that is applied in the absence of an agreement, that of separation of property, the matrimonial agreements have a different meaning, despite not having any difference from a legal point of view, with those that can be granted in other parts of Spain.
In addition to Catalonia, the Matrimonial Agreements were the vehicle through which contractual succession, very frequent in rural areas, was articulated, at least until the entry into force of Book IV of the Civil Code of Catalonia.
So, do marriage agreements only serve for a regime of separation of property?
Before answering this question, it would be convenient to point out that marriage agreements are a contract of a matrimonial nature in which the matrimonial economic regime can be determined, and depending on the case, agree on succession agreements, make donations and establish the stipulations and lawful agreements that are considered appropriate, even in anticipation of a marital breakdown
The content of marriage agreements
The capitulations are a contract linked to marriage, since its meaning is to regulate certain aspects of it, may be granted before or after its celebration.
If they are granted before, they only take effect from the celebration of the marriage and expire if the marriage does not take place within one year.
Marriage agreements can be granted by those who can validly get married, who will need, in some cases, a complement of capacity and in any case require a public deed.
Despite the broad formula that we have indicated in the definition of marriage chapters, it is very difficult to specify what its content is, since it is not always easy to ensure that its limits, consisting of respect for the principles of equality, moral and social parity, are not violated.
In any case, I'm going to try to do some kind of check list about those aspects of marriage or its extinction that can be the object of a pact, and that I am sure that more than one will be reminded of American movies.
We will make four groups of pacts:
a) Agreements relating to the relationship between the spouses.
1.- Possibility of eliminating essential duties of marriage, such as fidelity.
2.- Possibility of distributing domestic functions within the home.
3.- Possibility of temporarily excluding having children.
4.- Possibility of establishing rules to establish the conjugal domicile.
5.- Possibility of agreeing on the inclusion or exclusion of causes of divorce.
b) Agreements relating to relations with children.
1.- Pacts on the education of children, centers where they have to study, their religious or ideological inspiration.
2.- Agreements relating to the expenses of non-common children.
3.- Agreements on compulsory schooling.
c) Covenants relating to the matrimonial regime.
1.- Possibility of establishing a marriage regime other than the legally applicable one. Thus, it is possible to agree on a regime of separation of assets or a regime of participation in profits.
2.- Possibility of agreeing on a totally atypical economic regime.
3.- Possibility of agreeing to a foreign regime or one in force in another Spanish Community.
d) Covenants relating to the breakdown of marriage.
1.- Possibility of agreeing on compensation for work for the other spouse or for the household without remuneration or with insufficient remuneration, in the sense of increasing or decreasing the legal minimum, or its exclusion.
2.- Possibility of regulating the compensatory benefit, in the sense of fixing its modality, amount, duration and extinction.
3.- Possibility of regulating the attribution of the use of the family home or second residences, in the sense of who it may correspond to and for how long, or the possibility of establishing a shift of use.
4.- Possibility of regulating the guardianship and custody of the children.
5.- Possibility that certain assets that belong to both are awarded to one of the spouses, at the time of divorce.
Effectiveness of the pacts
Given the different nature of the agreements that we have listed, the consequences cannot be determined in a generic way, since in the absence of conformity it will be the judge who determines their legality.
However, and broadly speaking, we can point out that those whose non-compliance does not derive direct economic consequences must be linked to the establishment of compensation for the defaulting spouse and for the benefit of the other.