We all know that prenuptial agreements are not legally binding in the UK but, slowly, English law is beginning to recognise them as indicative of how a couple’s assets should be divided after a marriage ends. In Spain however, prenuptial agreements are fully legally binding (if drafted in accordance with the Spanish Civil Code).
Spanish law recognises a properly written prenuptial agreement as binding for a married couple, whether it is signed by the couple before, during or after the marriage. It also recognises cohabitation agreements made between couples who are not married. In addition, Spanish law does not discriminate on the basis of the sex or sexual orientation of the parties to these agreements. This means that anyone in a relationship with another person where they own or share property together in Spain can arrange their affairs using these simple legal instruments.
The impact of these agreements on a couple’s assets and property is due to the existence of a Matrimonial Property Regime system in Spain which clearly regulates how assets are to be owned and disposed of.
The advantage for holiday homeowners, but most importantly for UK couples living in Spain, is that enforceable prenuptial and cohabitation agreements have an impact on how your Spanish property can be dealt with, not only in the event of a divorce or separation, but also in contentious inheritance cases.
If the distribution is dealt with in the UK the courts, the process can take years rather than weeks and cost a significant proportion of the value of the property in contention rather than a one-off drafting fee.
However, a UK national living in Spain at the time that they make one of these agreements will be deemed to be habitual residence in Spain and can therefore rely upon the validity of a well worded prenuptial agreement in Spanish law in the event of the breakdown of the relationship. This removes the matter of property distribution on divorce or separation from the UK courts where these simple internationally recognised agreements are still not recognised.
For homeowners and second or multiple homeowners who qualify as habitually resident in Spain, these agreements simplify and bring certainty to a separation. To be clear, this applies to those who are married, living together or even have not entered into a relationship at the time of the formation of the agreement.
Prenuptial agreements that are written when a relationship is healthy often reflect the true wishes of the partners which can then be put into place if the relationship fails down the line. The agreements can prevent the courts becoming involved, limit the potential for lawyers to generate arguments about the couple’s belongings and how they are divided between each partner. Hopefully, then, saving each spouse significant heartache and cost when they are hurting the most.
It may be that your reason for making a prenuptial agreement is to protect an inheritance or because you have loved and lost before. Furthermore, they are unequivocally the best, cheapest, and most certain way of preserving your assets and dignity, while allowing you to move on and restart your life with comparative ease and simplicity, if things fall apart.
UK Family Law and the Spanish Civil Code, together with appropriate tax and immigration advice, must be considered when drafting your pre-nuptial agreement.
For more information or some preliminary, confidential advice on Prenuptial Agreement please contact Alex Fletcher at Del Canto Chambers through firstname.lastname@example.org. Alex Fletcher is an international family barrister, mediator and non-practising solicitor.