Registering rights derived from acts between a married person and a third party

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1. When a married person becomes the owner of a registered property, which special requirements derived from his/her civil status must be taken into consideration in order to get the new title registered in the Land Registry?

Spanish Land Registration Regulation establishes that when the proprietor is a natural person, his/her civil status must be entered in the Land Book together with the full name, ID number and address. Hence, the civil status of the buyer (or the person who acquires the title) must be expressed in the deed of transfer or any document aiming at updating the registry with a new owner.

Besides the civil status, if according to nature of the acquisition (succession, purchase, donation, assignments…) and the applicable matrimonial property law of the buyer, the spouse holds any right or interest on the acquired property, the deed should also identify the buyer’s spouse mentioning the full name and also the matrimonial property regime of the spouses at the time of the acquisition.

Those pieces of information will be demanded by the Land Registry in order to enter the new proprietor in the land book, since that information must be published in the folio close to the name of the proprietor. Hence, those data must appear in the acquisition deed. Otherwise, the Land Registry will suspend the registration of new owner’s title and will ask the interested party to fulfill this requirement providing the information in another relevant document.

The new owner will not be compelled to prove his/her civil status. A mere statement in the deed will be enough. Same applies to identify the full name of the spouse. However, regarding the matrimonial property regime other rules apply. The regime is different depending on the different situation.

We first make a distinction if the matrimonial property regime is the default legal regime establish by the applicable law or is a different one agreed by the spouses in a matrimonial property agreement.

The default matrimonial economic regime does not need to be proved. It is enough for the acquirer to state that this is the regime because the couple has not agreed a different one. But if the matrimonial property regime is not the default legal regime, because the couple have adopted a different one, then proof of that matrimonial agreement will be demanded.

The matrimonial property agreement must also be disclosed for public knowledge by its registration in the devoted Registry, which is the Civil Registry (the Registry of persons) and proof of that registration will also be demanded by the Land Registry.

To prove the matrimonial property agreement, the original or a certified copy of matrimonial property agreement’s document and a certificate from the competent Registry where the agreement has been registered proving its registration is needed.

At the time of drafting the deed that proof should be presented to the notary who must attest it with the relevant documents. The notary, when drafting the deed, must reflect all that information either by attaching to the deed a copy of the documents presented by the owner or by extracting the relevant data referred to the document and its content as well as its publication and declaring how that information has been proved. That information should be clearly stated in the deed.

If proof had not been produced before the Notary, or the Notary has not reflected it properly in the deed, then the Land Registry will suspend the registration and will ask the interested party to produce the proof before the registrar, presenting at the Land Registry together with the deed of acquisition and the application form a certified copy of the matrimonial property agreement and a certified information of its registration.

With regard to the formal validity of the agreement, and having regard of article 25 of the EU 1103/18 Regulation, it is worth mentioning that according to Spanish Civil Code, the matrimonial property agreement must be expressed in an authentic act, a notarial public document which is mandatory, since article 1280 of the Civil Code consider that public form as a prerequisite for the material or substantive validity of the act. Hence, if the habitual residence of both spouses is in Spain or the applicable law to the matrimonial property regime is the Spanish, that public form must be observed.

Foreign couples who did not marry in Spain cannot register their marriage in the Spanish Civil Register, and therefore the Civil register cannot publish their matrimonial property agreement. For them, there is no need to present proof of the registration of the matrimonial property agreement. However, if that agreement can be registered in the competent register of another State (for instance the Sate of their nationality or where they have married), they could also present a certificate of the registration, but in this case, on voluntary bases.

If the Spanish law is not the applicable law to the matrimonial property regime of the buyer, the regime is different.

The registrar is not compelled to know the foreign law. Foreign law is not covered by the ”iura novit curia” principle. So, either the default legal matrimonial property regime or any other agreed regime must be proved before the registrar.

The buyer, the new owner who is under a foreign matrimonial property regime should have first to determine which is the applicable law to the matrimonial property regime of his/her marriage, and afterwards must prove which is the concrete regime establish by that law and its content according to that law’s provisions.

This is applicable either for the default legal regime (when spouses have not performed a matrimonial property agreement), but also for any other matrimonial economic regime they could have agreed.

The proof of foreign law is not easy, its regulation derives from article 36 of the Mortgage Regulation of 1947. The main features of this proof are:

• Foreign law must be proved in its content and validity. It is not enough a mere transcription of the relevant provisions of the foreign law, but also how the courts interpret and apply them.
• The proof must be produced by presenting a study or a report from a Notary, the consul or from two legal advisers from the devoted country.
• The law allows the registrar to dispense with that proof, under his/her personal liability, if he /she has enough knowledge of the foreign law.
• If foreign law is not proved, the registration must be rejected.

However, in the particular and sole case of the proof of the matrimonial property regime of the buyer, due to the difficulty of proving the foreign law which could impede the new owner to be registered, the Spanish mortgage act permits to make the registration even when the foreign law has not been proved, postponing to the moment of the disposition of the registered title the proof. This special regime is established in article 92 of the Mortgage regulation and presents the following features:

• The buyer must comply with the identification of the applicable law. The applicable law derives from the conflict of law rules and it must be clearly established in the deed.
• As the applicable law has not been proved, it is not possible to determine if the spouse of the buyer holds any right or interest in the title, so the name must be always identified.
• The entry of the new title will be done solely in favour of the buyer, but it will identify the full name of his/her spouse, and the registration will mention that the proprietor title could eventually be subjected to the prescriptions derived from his/her the matrimonial property regime.

As we said, proof is postponed to the moment the proprietor intends to burden or to dispose of the registered title. In that moment the proprietor must prove that according to the matrimonial property regime the spouse has no right or any interest in the registered title, or in other case the registrar will demand the specific consent of proprietor`s spouse to modify the registry.

It is also possible for the proprietor to avoid the prove of the foreign law, if the person who was his/her spouse at the time of the acquisition solemnly express the consent to any alteration in the title, such as its burden or disposition.

2. How the registration in favour of a married person would be done? Would any interested party be able to know by checking the land registry information any restriction in the powers of the owner derived from the matrimonial property regime?

When the acquirer is a natural person, his marital status and, if married, his matrimonial property regime must be indicated on the acquisition title. Considering the matrimonial property regime and the declarations of the interested parties, the property may be registered in favour of one spouse, in favour of both indicating the quota and, in case of community matrimonial property regimes, in favour of both, without indication of quota as a joint ownership.

If the matrimonial regime is established by the law in the absence of a prenuptial agreement, the regulation applied must be indicated. This regulation depends on the personal law of the spouses, the place of residence and the place where the marriage is celebrated.

If the matrimonial regime is the result of matrimonial settlements, the public deed in which the matrimonial property regime has been established must be indicated. In addition, a certificate of the Civil Registry should be presented to the Land Registry or to the Notary drafting the deed to check prior registration of the agreement in the Civil Registry.

Thus, the Land Registry states, among other circumstances, whether the owner is single, married, widowed, separated or divorced and, if married and affecting the act or contract that registers the present or future rights of the common ownership of the spouses, the matrimonial property regime and the name and surname and domicile of the other spouse (articles 9 of the Mortgage Law and 51 of the Mortgage Regulation).

In the event of the registration in favour of a person married under foreign law, the same circumstances may be shown in the registry entry. Regarding the matrimonial property regime, we have to remind that whenever it is ruled by foreign law, this law should be proved to the Land Registry. If good evidence of the foreign law (attested as explained in question 3.1.) is given, the matrimonial property regime and the character of the asset as private or joint owned in case would be included as land registry information. If no good evidence is given (proof of matrimonial property regime of foreign law does not comply requirements of article 36 Mortgage Decree) registration would be done in accordance with article 92 of the mortgage decree which , as stated in question 3.1., would make the entry of the new title solely in favour of the buyer, but it will identify the full name of his/her spouse, and the registration will mention that the proprietor title could eventually be subjected to the prescriptions derived from his/her the matrimonial property regime. In this last case, the required proof is postponed to the moment the proprietor intends to burden or to dispose of the registered title by his own. In other case, the registrar will demand the specific consent of proprietor`s spouse in case of burden or sale of the immovable property to modify the registry.

In conclusion: if the matrimonial regime of the married acquirer or acquirers is subject to foreign legislation, the registration shall be made in favour of the acquirer or acquirers and it shall be made clear that it is verified subject to their matrimonial regime, with an indication of this, if it is recorded. When the property is sold, the matrimonial property regime must be proven if the two spouses do not appear.

Registered partnership

As mentioned before, the partner registry is an administrative registry and not a judicial one. Consequently, decisions on the registered couples are taken by the couple members and a court decision is not needed to split the couple.

Registered couples can make agreements on their further acquisitions similar to the matrimonial property regime which may affect any acquisitions that they make after being registered.

Deeds of acquisition made by registered partners must show the name and surname of the members of the couple. In case of any general agreements or arrangements on further acquisitions, the deed containing those arrangements or agreements should be presented in the Land Registry with the deed of transfer to check that the conveyance is done according to its provisions.

The entry will show, the same information as for any natural person (name, surname, address, id or foreign fiscal number given by Spanish tax agency) and civil status or member of a registered partner. In case of registered partner, the name of the couple should be included. Any agreement on the nature of further acquisitions should be presented to the registry and basic rules of governance of the community regulated on that deed will be registered.

3. What will the Land Registry demand from a married proprietor to register the transmission or any modification of his/her registered title?

The matrimonial economic regime will always be required to register the acquisition of the immovable property in the Land Registry.

If the matrimonial property regime is the default regime established by the national law applicable to his marriage, no proof will be needed, only the declaration made by the proprietor. The registrar will check, however, that the declaration of the proprietor suits to the default matrimonial property regime established by his applicable law. It is also possible just to say that his or her matrimonial economic regime is the default one established by his or her national law, without specification, but the name of the spouse will always be required (otherwise, it would be possible to purchase a property married to someone and dispose of it once the spouse has changed) and in the moment of the disposal of the property the specification of the matrimonial economic regime will be required.

In contrast, if the if the matrimonial property regime is not the default one but another one which derives from a matrimonial property agreement between spouses the proprietor will be expected to present proof of it, by means of joining the original contract, with the Hague apostille or its signature legalized in case of being a foreign document. In addition, in case that the foreign country whose law rules the marriage requires it, registration of the matrimonial economic regime will have to be proved too. It will be, hence, the registrar who checks the compliance of these requirements.

In their matrimonial contract, the spouses can also choose the applicable law to their marriage. In this case, the treatment face to the Land Registry will be the same as the above mentioned: a proof of the contract, and eventually of its registration, will be required.

If the matrimonial economic regime applicable to the married proprietor is of the kind of joint property, the consent of the spouse will be needed to register any act of disposition. The same can be said if the matrimonial economic regime is not one of the joint community kinds, but also requires the consent of both the spouse to make act of disposal. In general, if the other spouse holds any right on the registered property -e.g., in the case of family home and its special protection- his or her consent will be demanded by the registrar to enter any new act on the property land book.

Finally, in the case of registered partnerships, in Spain there is no legal regulation at State level of registered partnerships. Only some Autonomous Communities (Regions) have a regulation in this sense, so it would depend on the Autonomous Community in question. In any case, a default property regime of the partnership is not stipulated in any region. Notwithstanding that, registered couples can arrange a property regime for their partnership, even reproducing one of the matrimonial property regimes stated by law, in a public document. In this case, they will be able to register their property subject to this regime, but a proof of it will be demanded by the registrar. In this case as the deed could not be registered in the civil registry and the couples registry it is and administrative one with just fiscal purposes the authentic deed containing the couples agreement must be originally presented to the registry as the only valid proof or copied completely and literally by the notary in the transfer deed. If the couple does not declare to be joined in a registered partnership or to have arranged a property regime, no further investigation will be made, and they will be treated as single persons.

Practical case 1

Janos, who is married to Elena under a matrimonial economic regime of community of joint assets, buys an immovable property. He signs the deed of transfer before a local notary, acting solely and on his own, without any intervention of his wife María. The deed of transfer is sent to the registry for registration.

Will Janos be registered as sole proprietor? Will the entry make any reference to the name of his spouse? Or his matrimonial property regime?

Since he is married under a matrimonial economic regime of community joint assets, both will be registered as proprietors.

The entry or registration will contain the name of the spouse, surname, residence and that the matrimonial economic regime is community of joint assets.

In case the deed says nothing about it, does the registry demand information about the civil status (married/ single (widow) of Janos? The identification of the spouse? Their matrimonial property regime?

The deed cannot be registered if it says nothing about the civil status, identification of the spouse and their matrimonial property regime.

They are essential elements needed for the registration. The deed will be rejected and must be completed with the information requested.

Would any proof of the concrete matrimonial property regime would be required?
In the absence of a marriage arrangement or contract, or if these should be ineffective, the legal system of economic matrimonial regimen applies (with the features indicated above).

If the matrimonial regime is the legal one, which is applied in every marriage when nothing different has been agreed, no prior registration in the Civil Registry is needed and the registrar just checks that according to the regionality of the married spouses the matrimonial economic regime expressed in the deed matches with the default or suppletory one of that region.

By contrast, if the spouses have established on a marriage contract or agreement a different matrimonial regime, it will be necessary to prove it by means of a Civil Registry certificate and in this case, also the previous registration on the Civil Registry of that matrimonial regime should be proven.

What if Janos and Elena’s matrimonial economic regime is under a foreign law?

They will both be registered as proprietors. In the registration will be stated that they are both proprietors, according to their foreign matrimonial economic regime.

In case of acquisitions made by a foreign couple, article 92 of the land registration Regulation establishes the following:

“When the economic-matrimonial regime of the transferees or married purchasers is subject to foreign legislation, the registration will be made in favour of them, indicating in the registration that it is verified subject to their matrimonial regime, with indication of this regime, if it appears. “

This means that foreigners do not need to show or justify their matrimonial economic regime in the moment of the acquisition, these acquisitions will be registered according to their national matrimonial regime.

Would that information appear somehow in Janos’ right registration?

Yes. Every registration contains:

Marital status
If married:

• Spouse´s name and surname
• Residence
• REM: which REM and in which Civil Status Registry it is registered and whether the acquisition is made for the matrimonial joint community or only for the particular patrimony of one of the spouses. In the event of foreigners´ acquisitions, it will appear that the acquisition is made according to article 92 of the Mortgage Regulation.

If the answer is affirmative, will that information be taken into account if Janos performs a disposition act of the registered property to a third party in the future?

Yes. Janos cannot perform a disposition act by himself if the property is registered for the joint community. He needs also his wife consent to dispose of the property.

In case of acquisitions made by a foreign couple, their matrimonial economic regime must be stated in their acquisition deed, just by saying they are married under their national statutory regime or proving their arranged REM if it may be the case. If afterwards one of the spouses wants to convey or charge the registered property in absence of the other, he or she must prove that according to his or her national law, the disposition of the property can be done alone, without needing the consent of the other spouse. In any other case, the transfer must be done by both spouses.

If the answer is negative, a future disposition performed solely by Janos to a third party in good faith would be valid? Would it be registered?

As mentioned before, no registration of the transfer made by a sole member of the couple could be registered as it will be void and null according to civil law and registrars check in Spain the validity of the form and content of every deed entered for registration.

Would any of your answers to these questions be different if dealing with a registered partnership, rather than a matrimonial property regime?

No general limits are set to the right of disposal of a registered partner as mentioned before, as no legal presumptions benefit the agreements reached by registered couples on further acquisitions, neither do the notice given to these agreements by the regional registries, as they will never prejudice third parties.

Consequently, the Land Registry will only limit the right of disposal of an owner, member of a registered couple, if in the previous acquisition it is already registered any limitation on his right of disposal because of a specific agreed community or joint tenancy regulation.

Practical case 2

Pierre is married to Michelle and although the matrimonial property regime established by the applicable law is a joint community one, the same law allows the spouses to modify that legal regime adopting a different one which is the property separation of assets regime, for which purpose they both sign a matrimonial property agreement modifying their matrimonial community property regime into a separation of assets one.

When Michelle buys the right of usufruct on an immovable asset, she appears on her own in the contract of sale and the transfer deed and she wants that the registration to be made in such a manner that no restriction or limitation derived from her marriage appear in the registry.

Will the registry make the registration according to her wishes without any proof of the matrimonial property agreement?

The public deed must indicate that the spouses have modified the legal regime by signing a marriage contract. A proof of that contract in the deed will be also required for registration.

In case Spanish law is applicable, the certification issued by the Civil Registry giving notice of the articles agreed will be needed.

Would it be sufficient to present the document containing that agreement?

The public transfer deed should refer to that document containing the agreement, with a proof of it, and that it has been previously registered if it is mandatory under the national applicable law.

However, if the document containing the agreement is a public document and it has the “Hague Convention” apostille or its signature is legalized, it would be sufficient to present it alongside with the transfer deed, also with the registration proof of that agreement if required.

Should that agreement be registered first as a prerequisite for the registration in the Land Registry?

Yes. It has to be registered in the Civil Status Registry.

In case of an affirmative answer, where should it be registered?

Civil Status Registry.

Would any of your answers to these questions be different if dealing with a registered partnership, rather than a matrimonial property regime?

As mentioned before, there is no legal regulation at State level of registered partnerships. Only some Autonomous Communities (Regions) have a regulation in this sense, so it would depend on the Autonomous Community in question, but they do not regulate an economic regime between partners. Partners will be always free to agree such regulation between them, but it will not be possible to register it with effect against third parties.

Registered couples can make agreements on their further acquisitions similar to the matrimonial property regime which may affect any acquisitions that they make after. These agreements have to be set in notarial deed and the regional partner registry can make notice of them. However, this agreement does not prejudice third parties and does only have effects between the couple members.

Deeds on acquisitions made by registered partners must show name and surname of the members of the couple. In case of any general agreements or arrangements on further acquisitions, the deed containing those agreements or arrangements should be presented in the Land Registry with the deed of transfer to check that the conveyance is done according to its provisions and it will be registered with the limitations or regime agreed.