You are married and only wish to purchase Spanish property? Then you must prove that you are buying with your own funds. How can you ensure that you can register the property in your own name? You will find more information in this article.
In Belgium
You are married under the community property system. If you then wish to purchase property in Belgium, you will be deemed to buy with the joint marital assets. However, if you buy the property with your own assets, you will have to pay a declaration of real estate investment should be included in the purchase deed. You should also demonstrate that the funds are effectively your own.
If you are married under the system of pure separation of assets, you do not need to include such a statement. After all, there are no joint assets then.
In Spain
In Spain, it is more complex. Also in Spain, there is a legal presumption that if you are married, you always buy together, regardless of the financing method and marriage system. Therefore, you have to prove that you are buying with equity.
A declaration of real estate reinvestment in the deed of sale is not known in Spain. However, you will have to specifically include that you are buying with equity. Next, we distinguish two situations.
In the first hypothesis, you are married under the regime of pure separation of assets. You will then need to have your marriage agreement translated by affidavit, with apostille. That way, the local Registration office register your property title as your own. If you fail to do so, the Registration Office will register the title as common.
In the second hypothesis, you are married under the statutory system. In this case, you will need to make a declaration before a notary that the funds for purchase are your own. Depending on the Registration Office - these offices are organised locally in Spain and have their own interpretations of legislation and customs - your partner will also have to confirm that these funds belong to your own assets. This declaration can still take place after the execution of the purchase deed.
Read more about the consequences of your prenuptial agreement when buying property in Spain.
What if your title is incorrectly registered?
Here we should distinguish between two situations.
If your deed of sale does not state that you are only buying, you buy finally by two. Both spouses then have equal title to the property, with all its consequences. This is difficult to rectify afterwards.
If you did have an entry made in the deed, but you do not demonstrate that the resources are proprietary, the property is registered in the name of both partners. Even though you are the one with the title in accordance with the deed, the registration is done in the name of the joint assets. You do retain your title to the property and any proceeds in case of an erroneous registration. However, in the future, your partner will be involved in any sale, gift or inheritance. In the event of an inheritance, this may result in the payment of undue inheritance tax.
Correcting the erroneous registration later is not obvious. Just try proving that you bought with your own funds 20 years ago.
Decision: married and only buying Spanish property
If you are married and wish to buy alone, it is important that you take the right steps to prove that the purchase is made with your own funds. If not, the property will be registered in the name of the matrimonial community, which may cause complications later, in case of sale, inheritance or gift.
