Do you wish to buy property with your partner? Before you proceed with the purchase of a property, it is essential to be well informed about the legal aspects, especially with regard to the ownership relationship between you and your partner. This article discusses the three most common situations for people buying property in Spain as a couple: married in community of property, married with separation of property and unmarried cohabiting.
1. Married in community of property
Are you married and the community property system applies in your country? In that case, all purchases, including property in Spain, basically become joint property. This means that the property automatically belongs to both spouses, regardless of who finances the purchase. In the event of a divorce, the property will in principle be divided equally, according to the rules of your home country or the country where you were married.
Key points of interest:
- Both partners are registered as owners through the joint marital property.
- In case of divorce, the property is basically divided equally.
- Note that distribution in Spain will be based on the regulations of your home country or the country where you were married.
- If you wish to purchase the property alone or deviate from the 50/50 division, your partner must declare that the purchase will be made with his/her own funds, outside the joint marital assets.
2. Married with separation of assets/marital settlement
In a matrimonial system with separation of assets, the assets of both partners remain strictly separate. However, in Spain, if you are married (regardless of the matrimonial system), there is a presumption that the purchase is made under the regime of community of property. You will therefore need to prove that you are married under separation of assets, for example through a sworn translation of your marriage contract with an apostille. Alternatively, your partner can declare that the purchase will be made with strictly personal funds.
If only one partner buys the property and has the property registered in his or her name (subject to following the required formalities), that person is also the sole owner. Do you want to share the property? Then it must be explicitly recorded what percentage belongs to each partner.
Buying property in Spain as a couple married under the regime of separation of assets therefore entails additional formalities.
Find more information on the translation of the marriage contract here.
Key points of interest:
- The property belongs to the person making the purchase, provided it can be shown that the financing is done with own funds, for example through the marriage contract.
- Both partners can be owners, but this must be explicitly stated in the deed of sale.
- In case of divorce, the owner retains full ownership unless otherwise agreed.
3. Unmarried cohabiting
Are you not married but want to buy a property together? In that case, you can choose to put the property in both names and fix the ownership percentage per person in the title deed (escritura). This will avoid legal complications in the future.
Key points of interest:
- Both partners can be registered as co-owners with a specific ownership percentage.
- On the death of a partner, his property share does not automatically pass to the other partner unless explicitly stated in a will is established. A proviso of accretion may provide an alternative solution to protect the surviving partner.
- It is advisable to draw up a cohabitation agreement with clear agreements on the property.
Note: In terms of inheritance tax, not every Spanish region provides a favourable measure for the surviving unmarried partner. It is therefore possible that high rates will apply. It is important to seek advice on your specific situation.
Read more about inheritance and gifting in Spain.
Buying property in Spain as a couple: conclusion
Buying property in Spain as a couple offers several options, depending on your marital status and mutual agreements. To avoid unpleasant surprises, it is highly advisable to seek legal advice and properly define the property rights in the purchase deed and, if necessary, draw up a will.
