Your marriage contract determines who becomes the legal owner of your Spanish property. Without proper supporting documents, the Spanish notary will automatically assume that you are married in community of property, resulting in shared ownership (50/50).
When buying property in Spain, it is crucial that your marital status and matrimonial property are correctly registered in the title deed (Escritura). For Belgians and Dutch, the Spanish legal assumption often deviates from reality, leading to tax and legal complications without correction.
The Legal System: Community of Goods
If you take no action, the Spanish notary will automatically register the property in the name of both spouses, each for the undivided half.
Spanish law applies the legal presumption that married people buy together. For Belgians in the statutory system and Dutch in the (overall) community of goods, this presumption fits seamlessly with reality.
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Consequence: You both become owners of the property.
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Action: In this scenario, you usually do not need to take any additional legal action or translate documents.
Buying as a married partner only within the statutory scheme
Despite the common system, do you wish to only acquire full ownership? This is legally complex. You need to prove conclusively that the purchase price came from equity capital (e.g. from an inheritance or gift that was outside the community).
Expert insight: "Merely using a bank account in your own name is not enough in Spain. You must document the 'traceability' of the own funds in the deed to avoid later claims from the partner or creditors."
Here you will find more information about buying property alone in Spain as a married partner.
Divergent System: Separation of Property and Marriage Conditions
Are you married under divorce of property? Then you must proactively prove this, otherwise the property will be incorrectly registered as joint property.
This is the most common stumbling block for entrepreneurs and high-net-worth individuals. The Spanish notary (Notario) has no access to the Belgian or Dutch marriage register. Without evidence to the contrary, he applies the Spanish 'gananciales' principle (community).
The procedure for correct registration
To put the property in the name of only one partner, or to make the separation of assets legally firm in Spain, the following steps are required before execution of the deed:
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Sworn Translation: Your marriage contract must be translated into Spanish by a sworn translator.
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Apostille.: The document must bear the Hague Apostille to be legally valid abroad.
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Registration: The notary shall include these provisions in the Escritura, so it Registro de la Propiedad (Property Register) registers the correct ownership ratio.
Consequences for your Spanish Mortgage
Spanish banks are strict on compliance. If you apply for a mortgage, the bank will also require proof of your marital status.
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Risk: If the property is in both your names (due to the false presumption), but you want to take out the loan alone, the bank will refuse.
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Liability: In case of divorce of assets, you may want to avoid the partner being liable for the mortgage debt. Correct documentation is the only guarantee here.
Unmarried Cohabitants (Actual or Legal)
Non-married partners enjoy complete freedom in the division of property rights, provided this is explicitly stipulated.
If you are not married, there is no matrimonial property regime. You will then buy into voluntary indivisibility (comunidad de bienes).
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Distribution key: You decide the ratio. This can be 50/50, but also 60/40 or 99/1, depending on the contribution of equity.
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Evidence: The notary simply records the distribution as you specify. No marriage contract is needed.
Emigrating to Spain: Will my contract remain valid?
Yes, your existing marriage contract generally remains valid after emigration, in accordance with European Regulations.
However, Spanish inheritance law is fundamentally different from Belgian or Dutch. Although your matrimonial property regime regulates ownership during life, it does not regulate what happens upon death. Therefore, it is strongly recommended for residents (and non-residents) to have a Spanish will drafting. This avoids the need for complex, time-consuming and expensive procedures to get your foreign will recognised in Spain. Learn more about the validity of your marriage contract in Spain here.
Frequently asked questions (FAQ)
Should I have my marriage contract translated before buying a house in Spain? Yes, if you are married under separation of assets or prenuptial agreements, a sworn translation with apostille is mandatory. Without this document, the notary will assume that you are married in community of property, which has legal consequences for the title.
What happens if I only buy a house in Spain while married in community of property? Without proof of 'equity', the property will automatically belong to the matrimonial community of property. Your partner will then become co-owner, even if he/she does not sign the deed. If you want to avoid this, you must prove that the money comes from your private assets (e.g. inheritance or donation) and your partner must co-sign the deed of purchase to confirm this.
Is a Belgian or Dutch cohabitation contract valid in Spain for the purchase of property? Spain does not recognise cohabitation contracts in the same automatic way as marriage for property purchases. You are seen as two individuals buying together. You can freely determine the ownership ratio in the purchase deed (e.g. 50/50 or 70/30), regardless of your cohabitation contract in the home country.
Can I change the division of ownership in the Spanish deed later? Yes, but this is considered a transfer of property and is tax disadvantageous. You will again pay transfer tax (ITP) or stamp duties (AJD) and notary and registration fees on the part that changes. It is therefore essential to define the ownership structure ("who buys what") correctly during the purchase. Read more about the end of co-ownership in Spain.
About the author: Glenn Janssens is a lawyer specialising in Spanish real estate transactions and tax regulations. Since 2017, he has been helping Belgian and Dutch individuals and entrepreneurs safely purchase and structure real estate in Spain. He guides files from A to Z: from due diligence, ownership and tax control to estate planning and optimisation for residents and non-residents. Thanks to his years of experience, hundreds of handled files and focus on transparent communication, Glenn makes complex Spanish legislation understandable and practically applicable for every property buyer.
Do you have any questions about buying in Spain? If so, please feel free to contact with us.
