Marriage vs. Domestic Partnership

Families are changing in Spain. According to the latest Continuous Household Survey published by the National Statistics Institute in April 2016, in 2015 85.5% of all couples were married, while 14.5% were in domestic partnerships. This meant a 1.6% increase in the number of domestic partnerships, while the number of married couples fell by 2.2%. This is because for some time now, people have become increasingly accepting of other life options for couples.

Although marriage is still the preferred option, domestic partnerships are becoming increasingly popular. Some attribute this to certain current economic factors: complicated access to stable jobs, less attachment to homeownership, and knowledge of the reality for couples in neighboring countries are causing the concept of this institution to change. In other words, marriage no longer seems to be the only acceptable option to form a family in our society, as it was decades ago.

Marriage and domestic partnerships are different institutions that respond to personal approaches and choices. Our society, and our law, respect both options. However, the content of both institutions is different.

Domestic partnerships are governed by different regulations in different autonomous communities. Prior to these laws and even today, the courts apply different solutions to the specific cases before them in a complementary manner. The applicable regional law doesn’t always provide an answer that can be considered “complete” for such a complex reality.

Domestic partnerships are legal couples for the purposes of pensions, housing protection, and other important aspects related to personal and property matters. As we mentioned, the rights and content of these unions will depend, to a large extent, on regional laws.

However, among other requirements, it will be necessary for such couples to register with the Domestic Partnerships Registry by complying with each of the legal requirements in order for all of the rights provided to these unions to be recognized. The period of cohabitation required to access such registration must be proven with cohabitation statements signed by witnesses, and the certificate of registration in the autonomous community for at least one of the partners will also be necessary.  Some autonomous communities also offer the option of making statements before notaries, thus forming a domestic partnership.

An important issue that usually interests domestic partners or those who are evaluating whether to choose this option is its financial component. Here the Civil Code establishes that financial relations are governed by the principle of free will. Domestic partnerships usually accept the property regimes applied to marriage, i.e. joint property, separate property, or profit sharing. Couples can agree on intermediate routes, but our legislation does not allow for agreements that limit the rights of one or both partners, or are manifestly unfair to one of them. However, there is no lack of cases in which a joint property regime is established to govern the financial component. Unfortunately, there is also no lack of domestic partnerships in which following a breakup, an ordinary declarative judgment is necessary to divide assets, in which one of the parties alleges the unjust enrichment of the other.

The world of adoption deserves a separate mention: in theory, the process is the same for married couples and domestic partnerships, although the reality is that the bureaucratic process tends to be slower for the latter. In this matter, government agencies adopt a protective attitude, and pay even more attention to domestic partnerships than to married couples.

The biggest differences with marriage arise in the case of inheritance upon death and in matters related to income tax. With respect to inheritance, many regional regulations do not yet regulate the automatic effects of the death of one of the partners.  For this reason, a will must have been granted in order to have inheritance effects, which in turn respects the legitimes established by the Civil Code and the possible regional regulation. With respect to personal income tax, domestic partners cannot file jointly, a method that tends to be beneficial in most cases.

Forming a domestic partnership is an option which the law establishes a clear legal framework for, recognizing content comparable to that of marriage. However, there are a series of formal requirements that such couples must fulfill; some of the effects are not equal to those of a marriage; and last but not least, the partnership’s treatment may vary from one autonomous community to another. 

Isabel Núñez

Partner at ICN LEGAL

931 060 620