Pre-nuptial agreements in Spain

Generally, when we think of a prenuptial agreement, American films and series come to mind. Something normal if we take into account that in Spain they do not have a great tradition. However, this does not mean that they do not exist.

The truth is that many couples do not consider enough the implications of getting married, either because they are not aware of them or because they are thinking about other things. After all, preparing for a wedding takes a lot of time and effort.

Therefore, we would like to explain what a prenuptial agreement is, how it is drawn up and put into effect and which aspects it regulates. Don't miss it.

What is a prenuptial agreement?

The prenuptial agreement in Spain is a written contract by which both spouses define the economic regime by which the marriage will be governed. Its purpose is to protect the individual assets of each of them and to prevent disputes in the event of dissolution, whether by death of one of the partners, separation, annulment or divorce.

The only aspects that cannot be regulated by a prenuptial agreement are those relating to the children in the event of termination of the marriage. We are talking, for example, about the custody regime or alimony.

How are prenuptial agreements drawn up?

Prenuptial agreements are drawn up by a lawyer specialising in family law. This is a professional who is trained to provide the advice that the spouses need and to draw up the document, which has to comply with a series of legal precepts.

The advisory work carried out by this type of lawyer is essential. This is due, in particular, to the fact that:

• They can help to choose the most appropriate matrimonial property regime according to the assets of each spouse. Obviously, from an objective perspective.
• It will explain what are the consequences of the choice of the matrimonial property regime and of any other agreement made.
• He/she will ensure that the contract is legally viable.

Once the document is written and both spouses have read it and agree with what is specified in it, it is time to sign it. For this, it is essential that a notary is present to attest that the couple signs it with complete freedom and being aware of the implications it will have.

After signing, the notary will take care of depositing the prenuptial agreement contract in the Civil Registry. If there is any real estate involved, it must also be registered in the Land Registry or the Commercial Registry, as the case may be.

When does the prenuptial agreement come into force?

As is obvious, the agreements reached between the members of the couple that have been set out in the document come into force from the date on which the marriage is contracted. From that moment, the prenuptial agreement becomes a marriage contract through the figure of the marriage contracts.

Marriage contracts are legal documents that serve to give effect to the agreements of the prenuptial agreement. They can be executed before or after the marriage, but it is always advisable to draw them up beforehand so that they come into effect from day one.

It should be borne in mind that marriage contracts are associated with the separation of property regime, which is not the default regime in most of Spain. Specifically, there are three types:

• Participation regime. This means that each spouse may share a certain percentage of the other spouse's profits. It does not have to be 50%.
• Profit-sharing regime. All profits made since the conclusion of the marriage are the common property of the couple. This means that, in the event of divorce or separation, they must be divided equally.
• Absolute separation regime. In this case, each of the spouses retains ownership of the assets he or she had before the marriage and of those obtained after the marriage.

Do prenuptial agreements lapse?

The answer is yes. In fact, this is an aspect that the future spouses must take into account when drawing them up, signing them and depositing them in the corresponding registers.

Specifically, once the prenuptial agreement has been given legal validity, the couple has a period of one calendar year in which to enter into the marriage contract and to set out the agreement in the marriage contract document. If they fail to do so, they will have to draw up another one following all the steps detailed above.

Is it possible to modify the pre-nuptial agreement and the capitulations?

A marriage is not a fixed or immovable entity. In fact, many things can happen over the years that cause the prenuptial agreement reached and put into effect after the celebration of the wedding to become outdated. For example, the financial and/or property situation of one of the spouses may change significantly.
This is the reason why the Civil Code provides for the modification of the marriage contract. To do this, all that is needed is a lawyer to draw up a new document and a notary to attest to the consent of both spouses and to deposit it in the appropriate register. It will then replace or complement the previous ones.

Conclusions

In short, getting married is a very important legal and financial decision. In fact, although it is always made with the intention of lasting a lifetime, a multitude of problems may arise that love alone is not capable of resolving. For this reason, signing a prenuptial agreement and putting it in the corresponding capitulations is usually a sign of maturity that will save many possible problems in the future. If you are considering a prenuptial agreement, you can seek advice from our family lawyers.