Prenuptial Agreements in Spain
by
Jeremy Morley
Prenuptial agreements are enforceable in Spain, unless they should be detrimental to the children or seriously damaging to one of the spouses. Article 90, Spanish Civil Code. Spanish law is particularly protective of the use of the marital home if the parties have children.
In recent years, there has been a large increase in the number of prenuptial agreements signed in Spain.
Rules concerning the applicable law are contained in the following E.U. Council Regulation 1259/2010 provisions:
Art. 5 Choice of applicable law by the parties:
1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or
(d) the law of the forum.
2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized.
3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.”
Art. 8. Applicable law in the absence of a choice by the parties:
In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State:
(a) where the spouses are habitually resident at the time the court is seized; or, failing that
(b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that
(c) of which both spouses are nationals at the time the court is seized; or, failing that
(d) where the court is seized.
Spousal Maintenance: The terms concerning spousal maintenance must comply with Art. 1438 of the Spanish Civil Code, which provides that, “the spouses shall contribute to meet the burdens of the marriage. In the absence of an agreement, they shall do it proportionally to their respective economic resources. The housework shall be computed as a contribution toward the burdens and shall give the right to a compensation that, in the absence of an agreement, the judge will fix at the termination of the regime of separation of assets.”
In recent years, there has been a large increase in the number of prenuptial agreements signed in Spain.
Rules concerning the applicable law are contained in the following E.U. Council Regulation 1259/2010 provisions:
Art. 5 Choice of applicable law by the parties:
1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or
(d) the law of the forum.
2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized.
3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.”
Art. 8. Applicable law in the absence of a choice by the parties:
In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State:
(a) where the spouses are habitually resident at the time the court is seized; or, failing that
(b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that
(c) of which both spouses are nationals at the time the court is seized; or, failing that
(d) where the court is seized.
Spousal Maintenance: The terms concerning spousal maintenance must comply with Art. 1438 of the Spanish Civil Code, which provides that, “the spouses shall contribute to meet the burdens of the marriage. In the absence of an agreement, they shall do it proportionally to their respective economic resources. The housework shall be computed as a contribution toward the burdens and shall give the right to a compensation that, in the absence of an agreement, the judge will fix at the termination of the regime of separation of assets.”
