What you need to know about getting a prenup in Spain
A prenup is typically an agreement made between a couple before they marry, stating each person’s rights to assets should the marriage fail, but what happens if you want to get one in Spain, how do you go about it and what do you need to know?
The latest data available from Spain’s National Statistics Institute (INE) shows that in 2021 there were 86,851 divorces, 12.5 percent more than in the previous year. Joint custody was granted in 43.1 percent of the cases of divorce and separation of couples with children.
Prenups are not as popular in Spain as they are in some countries such as the United States or Japan, but although are not expressly regulated in Spain, they have been recognised on several occasions by the courts.
What is a prenup?
A prenuptial agreement is a way of protecting financial wealth or indeed setting how assets should be divided, in the case that you decide to divorce later on down the line.
The agreements can prevent the courts from becoming involved and limit the need for lawyers too.
Article 90.2 of the Civil Code states: "There is no legal prohibition against prenuptial agreements and the emphasis must be placed on their limits, which are in the protection of the equality of the spouses and in the interest of minors, if any”.
It establishes that they will only be legal and be upheld if they are not harmful to minors or seriously harmful to one of the spouses.
Prenups in Spain are not only used for divorce however, they could be used in the event of separation, annulment of the marriage or death.
Who can sign a prenup in Spain?
You can only sign a prenup in Spain yourself, you can’t get someone else to do it for you. You must be of legal age which is 18, or 16 with judicial consent. You must also prove that you’re of sound mind.
People with incapacity can also sign a prenup, up to a certain extent. If authorised, they can ask for help from their parents, guardian or legal representative.
In Spain, a prenup can be signed before you marry or indeed at some point during your marriage and it can always be modified or changed, as long as both partners agree.
Be aware though, if you sign a prenup before you marry, it is only valid if you marry within one year.
Read Also: Civil union or marriage in Spain: which one is better?
What is included in a prenup?
The document can help you answer several questions ahead of time if the need arises, such as: who gets the car? How is the money you have in the bank going to be distributed? Are you responsible for each other’s debts?
There are different types of agreements available which include:
- Absolute Separation of Property: Each spouse separately retains ownership of all their property before and after the marriage.
- Profit Sharing: Profits earned from the marriage are common property. In case of separation or divorce, property is shared equally.
- Participation regime: Each spouse has the right to gain from the profits obtained by the other when the regime is in force.
- In Spain (except in Catalonia) the marital property regime is applied by default when there are no prenup marriage agreements.
It is true that prenups typically regulate financial assets, but they can be used to regulate any part of a marriage.
They could be used to stipulate what will happen should one of the partners pass away or they might stipulate what each partner should do in case of a matrimonial crisis.
For example, they could be used to decide on the custody of children or where they will live. It’s worth keeping in mind, however, that the decision in the prenup regarding children may not always be upheld by a judge.
The custody decision will be based solely on the welfare and interests of the child, so if you signed a prenup to say you will get joint custody, but the judge believes it will be harmful if the child stays with the father for example, the ruling might be different.
How is a prenuptial agreement drawn up in Spain?
To make a prenuptial agreement you should contact a lawyer specialising in family law and prenuptial agreements. They will advise you on the procedure and write it up for you. They will also:
- Advise on the economic regimes of marriage provided by law and choose the one that best suits your needs.
- Explain the consequences of the measures you include and their feasibility.
- Ensure that the clauses reflect the agreements.
- Check that none of the clauses conflicts with the law.
The prenuptial contract must be registered in the Civil Registry and must be signed before a notary. And in case of any clauses relating to real estate, any changes must also be communicated in the Mercantile or Property Registry.
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The latest data available from Spain’s National Statistics Institute (INE) shows that in 2021 there were 86,851 divorces, 12.5 percent more than in the previous year. Joint custody was granted in 43.1 percent of the cases of divorce and separation of couples with children.
Prenups are not as popular in Spain as they are in some countries such as the United States or Japan, but although are not expressly regulated in Spain, they have been recognised on several occasions by the courts.
What is a prenup?
A prenuptial agreement is a way of protecting financial wealth or indeed setting how assets should be divided, in the case that you decide to divorce later on down the line.
The agreements can prevent the courts from becoming involved and limit the need for lawyers too.
Article 90.2 of the Civil Code states: "There is no legal prohibition against prenuptial agreements and the emphasis must be placed on their limits, which are in the protection of the equality of the spouses and in the interest of minors, if any”.
It establishes that they will only be legal and be upheld if they are not harmful to minors or seriously harmful to one of the spouses.
Prenups in Spain are not only used for divorce however, they could be used in the event of separation, annulment of the marriage or death.
Who can sign a prenup in Spain?
You can only sign a prenup in Spain yourself, you can’t get someone else to do it for you. You must be of legal age which is 18, or 16 with judicial consent. You must also prove that you’re of sound mind.
People with incapacity can also sign a prenup, up to a certain extent. If authorised, they can ask for help from their parents, guardian or legal representative.
In Spain, a prenup can be signed before you marry or indeed at some point during your marriage and it can always be modified or changed, as long as both partners agree.
Be aware though, if you sign a prenup before you marry, it is only valid if you marry within one year.
Read Also: Civil union or marriage in Spain: which one is better?
What is included in a prenup?
The document can help you answer several questions ahead of time if the need arises, such as: who gets the car? How is the money you have in the bank going to be distributed? Are you responsible for each other’s debts?
There are different types of agreements available which include:
- Absolute Separation of Property: Each spouse separately retains ownership of all their property before and after the marriage.
- Profit Sharing: Profits earned from the marriage are common property. In case of separation or divorce, property is shared equally.
- Participation regime: Each spouse has the right to gain from the profits obtained by the other when the regime is in force.
- In Spain (except in Catalonia) the marital property regime is applied by default when there are no prenup marriage agreements.
It is true that prenups typically regulate financial assets, but they can be used to regulate any part of a marriage.
They could be used to stipulate what will happen should one of the partners pass away or they might stipulate what each partner should do in case of a matrimonial crisis.
For example, they could be used to decide on the custody of children or where they will live. It’s worth keeping in mind, however, that the decision in the prenup regarding children may not always be upheld by a judge.
The custody decision will be based solely on the welfare and interests of the child, so if you signed a prenup to say you will get joint custody, but the judge believes it will be harmful if the child stays with the father for example, the ruling might be different.
How is a prenuptial agreement drawn up in Spain?
To make a prenuptial agreement you should contact a lawyer specialising in family law and prenuptial agreements. They will advise you on the procedure and write it up for you. They will also:
- Advise on the economic regimes of marriage provided by law and choose the one that best suits your needs.
- Explain the consequences of the measures you include and their feasibility.
- Ensure that the clauses reflect the agreements.
- Check that none of the clauses conflicts with the law.
The prenuptial contract must be registered in the Civil Registry and must be signed before a notary. And in case of any clauses relating to real estate, any changes must also be communicated in the Mercantile or Property Registry.
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