SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
• joint ownership of acquisition of assets; • separation of assets; and • participation in acquisitions.
was the owner of the assets before the transfer to the trust, etc, to calculate the matrimonial assets. 2.4 Spousal Maintenance After a divorce, it is generally expected that each spouse will support themselves. The main aim of spousal maintenance is to help the ex-spouse to maintain the same “standard of living as during the marriage”. The main criteria for spousal maintenance are: • if the divorce produces an adverse economic imbalance for one of the spouses; and • if there has been a loss of professional opportuni ‑ ties because of the marriage. Age, health, duration of the marriage and the spouse’s career prospects and ability to earn a living are also taken into account. The compensation usually consists of temporary maintenance payments for a couple of years, but a single payment can also be considered. Lifelong spousal maintenance orders are rare and only apply in cases where the marriage is very long and the spouse is of an age with no prospects to earn a living after having invested their life in the family’s welfare. A party can apply for interim maintenance pending the final outcome. This amount, for the spouse, until there is a divorce order, is considered an obligation for family support during the marriage. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements, although not included in the Spanish Civil Code (CC), will be recognised by the Spanish courts on the basis of the principle of freedom of party autonomy (Article 1.255 CC) and the freedom of agreements between spouses (Articles 1323 and 1325 CC). These marital contracts must meet the criteria for a valid contract, such as free consent, object and motive (Article 1261 CC). Moreover, the principle of goodwill and compli ‑ ance with the ordre public have to be observed. The most recent judgment of the Spanish Supreme Court ( Tribunal Supremo ) on marital contracts is Sentencia número 428/2022, dated 30 May 2022, proceedings Casación número 6110/2021.
The matrimonial property regime will finish the ope legis on the date of the divorce decree. After the divorce decree, the parties can issue the specific liq ‑ uidation of the matrimonial property regime and pro ‑ ceed to distribute the assets and liabilities between them. They can also make an out-of-court agreement and liquidate the matrimonial property regime in a notary public deed. Spain is comprised of 17 autonomous communities ( Comunidades autónomas ), some of which have their own rules of law regarding family and succession. The common point is that, in all of them, you can choose your matrimonial property regime in a notary public deed. However, in the absence of an agreement, one of the following matrimonial property regimes will apply by default: • Civil Code – joint ownership of assets ( Régimen de gananciales ); • Catalonia, Aragón and the Balearic Islands – sepa ‑ rate ownership of assets; • Galicia – joint ownership of assets; • Basque Country (differences between the counties) – joint ownership of assets/universal community of assets; or • Navarra – matrimonial company of conquests ( Sociedad conyugal de conquistas ). The matrimonial property regime can be implemented with a prenuptial or postnuptial agreement. Spain is not a party to the Hague Convention of 1985, and trust is not a legal concept or regulated in Spain. Foreign Trusts Foreign trusts can be recognised by the Spanish courts subject to proof of the foreign trust law or pro ‑ viding the judge with a similar civil law legal concept that would meet the purpose of the trust on a case- by-case basis: eg, donations, agency, company, mort ‑ gage, mandate, fiducie and foundation. On divorce, the court will check the nature of the assets held in a trust, the owner of the assets held in the trust, who
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