3. Registering rights derived from acts between a married person and a third party
Marriage does not modify the legal capacity of the person. However, in some jurisdictions, when a person gets married enters into a special economic regime established by law to provide for the couple’s necessities during their common life. This also applies in some countries for those stable couples not married but registered as such.
Due to this matrimonial property regime, a special community of assets subjected to special rules of liability, administration and disposition is frequently set between spouses.
Determining when the property right on a certain registered immovable asset is included or not in the matrimonial community of assets, and therefore is or is not subjected to the rules of the matrimonial property regime is crucial for the legal certainty in the immovable traffic.
In order to deliver that legal certainty, the tension between trust based on the land registry publicity on the one hand, and respect for rules governing the matrimonial economic regime in force between the couple on the other, must be previously solved.
It is crucial for a third party who enters in a legal relation to a married person to know what his/her matrimonial property regime is. This is also important for the land registry, since the third-party protective effect derived from the land registry will often demand prove of what the matrimonial property regime is before registering a new proprietor.
In principle, when both spouses appear as proprietors, rules of land registry will demand the intervention of both of them to validly act the registered title, so there is no interference between land registry publicity and the matrimonial property rules. But when only one member of the couple acquires, burdens or transmits a property right on a registered immovable, it is essential to know how the land registry deals with these problems in the different situations presented:
At the time of title’s registration, since in some legal systems the land registry will demand exact information and even evidence about the civil status, matrimonial property regime and identification of the other member of the couple, in order to publish eventual rights or restrictions in the proprietors title, while in other systems land registry will not demand such information, so it will not publish any information about it.
Also at the time to transfer or burden the registered title, it is also important to know whether the land registry will demand from the proprietor evidence about the matrimonial property regime before registering the disposition title, which happens in some systems, while in others the land registry does not take an active position in order to demand reliable information about the common or private nature of the registered title or the existence of restrictions derived from the matrimonial property rules.
Even when no information about proprietor’s matrimonial property rules is given by the land registry and no control is demanded to transmit the registered title to a third party, it is important to know if the bona fides effect of the land registry rules will protect the right of the buyer in good faith so the land registry publicity prevails over the matrimonial property rules for the sake of legal certainty, or on the contrary, restrictions derived from the matrimonial property rules will affect the acquisition and the right of the third party in good faith.
This section will try to present basic answers to some of these tough questions, being fully aware that the complexity of these issues does not allow a deep study of the different aspects concerned, the reference information contained in this fact sheet will only provide a first view of these issues.
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?
2. How the registration in favor 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?
3. What will the land registry demand from a married proprietor to register the transmission or any modification of his/her registered title?