Would the Land Registry make changes in ownership’s entry (proprietorship) on the bases of acts performed between the spouses?
In the field of Spanish Land Registry regulation, we can find different situations in which we can make entries in the Land Book on the basis of acts performed by spouses.
In Spain, the marriage does not affect to civil capacity, but the matrimonial property regime can condition some acts and demand extra requirements.
First, we need to know in each case, if the matrimonial property regime is the default legal regime established by the applicable law or if it is a different one agreed by the spouses in a matrimonial property agreement. In Spain, the spouses can choose freely their matrimonial property regime before or after the marriage and change it at any time. If no matrimonial agreement is made, a default matrimonial property regimen is established according to national or regional regulation. This regulation depends on the personal law of the spouses, the place of residence and the place where the marriage is celebrated. We need to consider that in Spain there are some regions that have their own civil system and the default matrimonial regime can be a community property or joint ownership (“sociedad de gananciales”, “consorcio foral aragonés”, “sociedad de conquistas navarra”, “regimen de comunicación foral de bienes”) or a separation of property regime.
In every deed entered for registration in case of a married person the following information will be required: his or her civil status, the matrimonial property regime, the name of the spouse and the name and surname and domicile of the other spouse (articles 9 of the Mortgage Law and 51 of the Mortgage Regulation). In addition, a certificate of Civil Registry from which it results the matrimonial property regime election, shall be incorporated to the public deed whenever a matrimonial agreement on this matter exists.
With regard to the formal validity of the agreement and the article 25 of the Council Regulation (EU) 2016/1103 of 24 June 2016, according to the article 1280 of the Spanish Civil Code, a public document is required to “the marital contracts and their modifications”.
In addition, according to the Spanish Civil Code, (article 1323), the spouses may conclude between themselves all kind of contracts and transfer all types of assets by any title, both during the marriage, and once it is dissolved
There are plenty of examples of acts that could be registered such as a disposition act between spouses, a matrimonial agreement between spouses changing its matrimonial regime, a distribution act of the matrimonial property’s which could be produced either by agreement between spouses or by a court decision but all of them should meet the requirements expressed above.
In the case of foreign couples, which cannot register their marriage in the Spanish Civil Registry, the public deed containing acts or contracts related to immovable assets or right in rem can be registered in the Land Registry with 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 state of their nationality or where they have married), they could also present a certificate of the registration, but in this case, on a voluntary basis.
A foreign document containing legal transactions between the spouses may be registered in accordance with article 60 of Law 29/2015, of 30 July, on international legal cooperation in civil matters, which establishes that «extrajudicial foreign public documents may be registered in Spanish public registers if they meet the requirements established in the specific applicable legislation and provided that the foreign authority has intervened in the preparation of the document by performing functions equivalent to those performed by the Spanish authorities in the matter in question and having the same or similar effects in the country of origin».
There is no legal regulation at State level of registered partnerships even though they are recognized as having effects in terms of residence permits and social security benefits. Only some Autonomous Communities (Regions) have a regulation in this sense.
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 partners registry it is an administrative one with just fiscal purposes, the authentic deed containing the couple’s agreement must be originally presented to the registry or copied completely and literally by the notary in the transfer deed. If the couple does not declare themselves 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.
These agreements must be set in notarial deed and the regional partner registry can make notice of them. However, these agreements do not prejudice third parties and does only have effect between the couple members.
Practical case 1
Paul and Mary married and they both own jointly an immovable property registered as such in your land book. Following a divorced between them, the property will become of exclusive ownership of Mary;
a) by means of the Court decision,
b) by an agreement between spouses in order the liquidation of their common assets.
Both documents are suitable for registration in the property registry and the Certificate of the registration of the divorce in the Civil Status Registry must be handle as well.
If Paul and Mary were a registered couple the answer will be different as decisions on the registered couples are taken by the couple members and a court decision is not needed to split the couple. Therefore, transfers on the share or ownership would be registered by means of the deed of transfer or the judicial decision in case of a dispute, in the same way as any transfer of share of any asset owned by two or more individuals
In addition, the partner registry is an administrative registry and not a judicial one, no certificate of “split” of the couple is needed.
Practical case 2
Paul is the registered owner of an immovable property acquired by succession. Sometime after his registration, Paul marries Mary and decides that the property will be in the common ownership of both spouses, so they perform the transmission act by a matrimonial property agreement according to the applicable law.
This transfer can enter the registry presenting the public deed of transfer among the spouses in which both agree to transfer the property to their joint matrimonial community.
If the agreement between Paul and Mary is to give their marriage a new set of rules of administration and disposal of the assets acquired during their marriage, that is, to agree on a new matrimonial property regime, the deed must go before to the Civil registry to make the new matrimonial property regime opposable to third parties. The new matrimonial property regime will cause a notice in the Civil Registry Books and the civil registry will issue a certificate that must be presented before the property registry with the deed of transfer of liquidation of the assets.
In case of registration of a foreign deed, “Hague Convention” apostille or the legalization of the signature will be necessary for deeds drawn up outside the European Union.
In all these cases, the public deed may also state:
– that the spouses have married in the absence of marriage arrangement or contract, in which case the legal matrimonial economic regime would apply
– the arrangement or matrimonial contract establishing a different REM of their matrimonial regime and its registration in the Civil Status Registry.
Finally, if Paul and Mary were a registered couple, they will be free to agree on a set for the administration and disposition of their goods but as they do not access to the civil registry, there is no opposability effect against third parties.
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 between the partners 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 and the registration will be made with the limitations or regime agreed by the partners.