Our first question is: did you draft a prenuptial agreement? The answer is usually no because couples don’t know about this document. And if they do know about it, they are reluctant to ask for it because their relationship is based on love. And we know that love is selfless and conquers all.
Now, lawyers know that marriage is just one more contract, another legal transaction between the parties with certain rights and obligations, albeit with romantic implications. While we consider written contracts as typical and commonplace for other relationships, we tend not to do them for matrimonial matters, leaving everything at the sole discretion of the law (which we usually are not familiar with), instead of laying out what we want, particularly as it pertains to financial matters. For lawyers, it is clear that love and money are intimately connected, though we may not want to admit it.
Despite all of this, people continue to get married without drafting this important document, even though most couples today end up separated and divorced.
Getting into the purely legal perspective of this matter, the two people getting married may be of different nationalities, or if they share the same nationality, they may be living in a foreign country. That’s when Private International Law comes into play. These are the rules that govern all legal relationships between individuals and regulate the validity of international marriage.
Within the domestic legal framework, Article 49 et seq. of the Civil Code provides the standards that validate marriage. The marriage can be between a Spanish citizen and a foreign citizen or between two foreign citizens and it can take place either in Spain or abroad (if the marriage is between two Spanish citizens, then the Spanish Civil Code applies).
In general terms, the Civil Code recognizes that the marital capacity (the capacity to marry) is overseen by each party’s personal law (which is determined by their nationality). There is no general rule for this matter in private international law, and as a result, the nationality laws of each of the spouses will apply.
Spanish couples can get married before a judge, mayor, or other official designated by the Civil Code either inside or outside Spanish territory and in the legally intended religious form. They can also marry outside our territory in accordance with the other country’s laws. If both parties are foreign nationals, they can marry in Spain in accordance with either Spanish law or their own country’s personal laws.
Another important point to consider is the financial framework of the marriage. The Civil Code, better known as common law, establishes the joint property financial framework. Thus, if the parties don’t have a prenuptial agreement signed before a notary, any property acquired by the spouses after marriage will automatically become a joint asset.
The concept of separate assets is valid in Catalonia, so only those assets that the parties decide to have together will become joint property, while individual assets will remain private. That is, the assets are not joined unless the spouses choose to do so.
But is it possible to choose the laws that apply to the marriage’s financial framework? Yes. Our Civil Code allows for the selection of applicable laws except when both spouses share the same nationality. In that case, the laws of their country of nationality will be applied.
In theory, the impact of marriage (including the financial framework) will be determined by the spouses’ common personal law at the moment they wed. Absent this law, they can choose the personal law or permanent residence of either one of them in a notarized statement signed before the marriage. If they fail to make a choice, the laws of the country of their last permanent residence will be applied and if there is no such residence, it will be determined by the laws of the country where the marriage is taking place. Thus, if both spouses share the same nationality, they cannot choose the laws that will apply to their marital framework, as they have to abide by the laws of the country of common nationality. However, if they are of different nationalities, then they have a choice between the laws of either country.
If they share the same nationality, it is also possible that the bride and groom come from different autonomous regions, each with their own statutory laws. In this case, the law also grants you the right to choose between applicable statutory laws. For example, if someone from Catalonia marries a person from Madrid, they may very well choose to have a prenuptial agreement.
What if the marriage takes place out of the country?
In this case, one of two things can happen: on one hand, the marriage can take place before a Spanish civil authority (the diplomatic or consular officer in charge of the Civil Registry abroad), or it may take place before a foreign authority, which shall apply the laws of their country, according to the rules established to validate the marriage.
However, for the marriage to be valid in Spain, you will have to meet all the requirements established by Spanish law or lex loci (which requires consent and the capacity to marry) and to register in the Civil Registry. Failure to comply with the legal requirements, will invalidate the registration and the marriage will not be recognized in our country.
So, should you decide to get married or remain married because you want to “bet” on love, our advice is that you do so with the safety offered by a prenuptial agreement. As we’ve heard before, love is like Las Vegas. We have a better chance at losing than winning but thousands of people are still betting and losing their savings each and every day with the same thought deep inside of them: what if I win the jackpot? Well, you’ll always have the “ace” of a prenuptial agreement “up your sleeve,” just in case you lose.
ICN LEGAL can help you every step of the way, as we have lawyers who specialize in all areas of International Family Law. Also, all of our lawyers speak perfect English and are very knowledgeable of international procedures in all five continents.
So let’s continue playing and betting here and beyond our borders. Our lawyers are here to help when you don’t hit the “jackpot” of love.