The Matrimonial Property Regime in the Autonomous Community of Catalonia

Marriage creates a community of life between the spouses that generates effects, both personal and patrimonial. In the field of property, a certain economic organisation is necessary to sustain this common life that begins with marriage and, therefore, the law must respond to several questions. Some of them, for example, are the attribution of ownership of property, the determination of contribution to the burdens that every marriage generates, i.e. the costs of maintaining children, the maintenance of the family home, or the determination of their responsibility.
 
The set of norms and rules that respond to these questions, and to those that are generated around them, is what we know as the matrimonial property regime. It constitutes, therefore, the set of legal norms that order the patrimonial effects of the conjugal community.
 
In this article we will focus on analysing the typologies of matrimonial property regimes that are regulated and applied in the Autonomous Community of Catalonia, first exposing the legal framework and basic principles that underpin them, and then alluding to the general provisions that apply in general to all marriages from the economic point of view in Spain, regardless of the regime.
 
Legal framework and basic principles
 
The sources of Catalan regional law are the provisions of the Civil Code of Catalonia, the other laws of Parliament on civil law, customs and the general principles of local law (Art. 111-1 of the CCCat). Likewise, the Civil Code of Catalonia itself establishes that, in its territory, its provisions constitute common law, which is why they are applied in preference to any others. The supplementary right only applies to the extent that it does not conflict with these provisions and the general principles that inform it (Arts. 111-4 and 111-5 CCCat).
 
In terms of matrimonial property regimes, Book II of the Catalan Civil Code applies, i.e. Law 25/2010, of 29 July, of Book II of the Civil Code of Catalonia, relating to the person and family (hereinafter CCCat).
These matrimonial property regimes are inspired in our legal system by the following basic principles. 
 
Firstly, in the legal equality of both spouses, enshrined in articles 32 and 66 of the Spanish Constitution, which establish that men and women have the right to marry with full legal equality and that the spouses are equal in rights and duties.
 
Secondly, in the freedom to determine and configure the economic regime of marriage. This guiding principle has various manifestations: freedom to determine the economic regime (art. 231-10 of the CCCat), freedom to modify it (art. 231-23 of the CCCat), or freedom to determine its content within the legal limits (art. 231-19 of the CCCat).
 
Thirdly, in the variability of the economic regime before or after marriage, recognised in articles 231-23 and 231-24 of the CCCat.
 
Finally, in the freedom of contract, a principle that is manifested in article 231-11 of the CCCat, according to which the spouses may transfer assets and rights to each other by any title and carry out all kinds of legal transactions between them.
 
General provisions
 
The general rule of Catalan law in matters of matrimonial property regimes is that it is the spouses themselves, or future spouses, who can agree to regulate them by granting matrimonial chapters. In the absence of these or if they are ineffective, the regime that applies is that of separation of property (art. 231-10 of the CCCat). Therefore, the principle of equal rights of the spouses is established in general (art. 231-2.2 of the CCCat).
 
However, as a primary regime, there are a series of rules that apply in general to all marriages from an economic point of view, regardless of the regime that the spouses have agreed or the one that is applied supplementarily. These are the following general principles or provisions set out below.
 
The joint management of the family (art. 231-4 of the CCCat):
 
The management of the family is the responsibility of the two spouses by mutual agreement, always taking into account the interests of all its members. Only in cases of urgency or impossibility of the other spouse, can one of them act alone, provided that it is done in the interest of the family and also to meet ordinary family expenses.
 
Family expenses (art. 231-5 of the CCCat):
 
Family expenses are considered to be those necessary for the maintenance of the family, in accordance with the uses and standard of family living. The recipients of these expenses are spouses and common children, and non-common children and other relatives may also be recipients, provided that, in the latter two cases, they live with the husband and wife and whenever they need it.
 
In particular, the following are family expenses:

• Those arising from maintenance, understood as everything essential for the maintenance, housing, clothing and medical care of the maintenance recipient; as well as the expenses for training if the latter is a minor, and for the continuation of training, once he has reached the age of majority, if he has not completed it for reasons not attributable to him. Likewise, alimony includes funeral expenses (art. 237-1 of the CCCat).
• Those for the acquisition and conservation of the family home and other assets for the use of the family.
• Provident, medical and health care. These expenses must include both ordinary expenses (such as life insurance or health insurance payments) and extraordinary expenses. Within the latter, we can cite, by way of example, the inclusion of the implantation of a prosthesis as a result of a surgical intervention.

 
Contribution to family maintenance costs (art. 231-6 of the CCCat):
 
It is established as a general rule and without prejudice to the agreements reached by the spouses, that in order to contribute these expenses, the members of the family unit must do so according to the following rules.
 
In relation to spouses:

• with the resources from their activity or their assets, in proportion to their income and, if these are not sufficient, in proportion to their assets;
• through one's own contribution to domestic work.

 
Children, whether common or not, while living with the family, must contribute proportionally to these expenses as follows (art. 236-22.1 CCCat):

• with the income they obtain from their activity;
• with the performance of their assets and rights; and
• with their work in the interest of the family.

 
Finally, the other relatives who live with the family, to the extent of their possibilities and in accordance with the expenses they generate.
 
Liability to third parties (art. 231-8 of the CCCat):
 
Before third parties, both spouses are jointly and severally liable for the obligations contracted to meet the needs and ordinary family expenses in accordance with the family's customs and standard of living. In the case of other obligations, the spouse who incurs them is liable.
 
Duty of reciprocal information (art. 231-7 of the CCCat):
 
This principle establishes that the spouses have the reciprocal obligation to be adequately informed of the management of assets they carry out in relation to the care of family expenses.
 
Disposition of the family home (art. 231-9 of the CCCat):
 
In order to carry out any act of alienation, encumbrance or disposition that compromises the use with respect to the rights of the family home and the assets of ordinary use of the family, the consent of both spouses is required, regardless of their matrimonial property regime and even if it refers to undivided shares of these assets. This consent cannot be excluded by agreement or granted in general. In the absence of consent, the judge may authorise the act if the interest of the family so advises or if there is another just cause.
 
Contracting between spouses (art. 231-12 and 231-14 of the CCCat):
 
The spouses may transfer property and rights to each other by any title and carry out all kinds of legal transactions. In the event of a judicial challenge, and in order to avoid the possibility of the existence of fraud or third parties or creditors, the burden of proof of the onerous nature of the transfer is transferred to the spouses.
 
As a protection of the rights of third parties and creditors, in the event of bankruptcy or bankruptcy of one of the spouses, it is presumed that the assets acquired from one spouse by the other spouse in the year prior to the date of the declaration or the date of retroaction, were donated by the other spouse, unless it is proven that, at the time of the acquisition, the marriage was legally or de facto separated or that the disponent proves that at that time he had sufficient income or resources to carry it out.
 
Seizure of indistinct accounts (art. 231-13 of the CCCat):
 
A non-debtor spouse who has a jointly and indiscriminately owned account with his or her spouse, the balance of which is seized as a result of the activities of the other spouse, has the right to remove from the garnishment the part of the balance that belongs to him/her.
 
Family widows' rights (art. 231-30 and 231-31 of the CCCat):
 
In favour of the widowed spouse who is not legally or de facto separated, two types of rights are established:
 
(i) The right to receive ownership of the clothes, furniture and utensils that make up the household goods, without counting them in his or her inheritance. This does not include jewellery, artistic or historical objects and those that have an extraordinary value in relation to the standard of living of the marriage and the estate of the estate, or furniture of family origin if the predeceased spouse has disposed of it by acts of last will in favour of other persons.
 
(ii) The right to continue using the marital home and to be fed by the estate of the predeceased during the year following the death or declaration of death of one of the spouses, always in accordance with the standard of living that the spouses had maintained and the importance of the estate, regardless of the other rights that correspond to them by virtue of the death of the predeceased. This right is lost if in that year the surviving spouse remarries or cohabitates with another person, as well as if he or she abandons or seriously neglects the common children. However, in no case will he be obliged to return the maintenance received.
 
Matrimonial chapters
 
Matrimonial chapters in Catalonia may have much broader content than the specific one provided for in the regulation of the matrimonial property regime, and may contain succession agreements, donations and other lawful agreements that are considered appropriate, even in anticipation of a marital breakdown (art. 231-19.1 CCCat).
 
A succession agreement, in accordance with article 431-1 of the CCCat, is an agreement in which two or more persons may agree on the succession due to the death of any of them, through the institution of one or more heirs and the performance of attributions in a private capacity. Such agreements may contain provisions even reciprocally in favour of third parties or in favour of the following persons (art. 431-2 CCCat):
(a) The spouse or future spouse.
(b) The person with whom he or she lives in a stable partnership.
(c) Relatives in a direct line without limitation of degree, or in a collateral line within the fourth degree, in both cases by both consanguinity and affinity.
(d) Relatives by consanguinity in a direct line or in a collateral line, within the second degree, of the other spouse or cohabitant.
 
The granting of matrimonial chapters may be made at any time before or after the celebration of the marriage, although those granted previously will expire if the marriage is not celebrated within a period of one year (art. 231-19.2 CCCat).
 
In order to modify the chapters or render them null and void, the consent of both spouses and, where appropriate, that of third parties who have intervened in them, or their heirs, is required if the modification affects rights conferred by them (art. 231-23 CCCat). Likewise, in order to avoid possible fraud, the Catalan legislator establishes that the modification of the chapters may not affect rights acquired by third parties (art. 231-24 CCCat).
 
The chapters become ineffective if the marriage is declared null and void or if legal separation or divorce is decreed, although there are certain contents that, in these cases, do retain their effectiveness, which in accordance with article 231-26 of the CCCat are:
(a) The recognition of children made by either of the spouses.
(b) Agreements made in anticipation of marital breakdown.
(c) Succession agreements in the cases in which this code so establishes.
(d) Agreements that have the chapters as a merely documentary instrument.
 
With regard to the content of the chapters, the agreements in anticipation of marital breakdown (art. 231-20 CCCat), which follow the following regime, are of special interest:
 

• If they are granted before the marriage, they will only be valid if they are granted before the 30 days prior to the date of the marriage.
• Agreements limiting or excluding rights must be reciprocal in nature and clearly express the rights that are limited or waived.
• The spouse who intends to enforce an agreement in anticipation of marital breakdown, has the burden of proving that the other party had, at the time of signing it, sufficient information about his or her assets, income and economic prospects, when this information is relevant in relation to the content of the agreement in question.
• Closely linked to the previous point, the notary, before authorizing the deed in which such agreements are established, must separately inform each of the grantors about the scope of the changes that they intend to introduce with respect to the supplementary legal regime and must warn the grantors of the reciprocal duty of information that has been set out in the previous point.
• Finally, those agreements that are seriously detrimental to one of the spouses at the time they are intended to be fulfilled, will be ineffective for the other spouse if the latter proves that relevant circumstances have arisen that were not foreseen and could not reasonably be foreseen at the time they were granted.

 
The Catalan Civil Code does not specify the specific content that agreements may have in anticipation of a marital breakdown, but mentions the possibility that they have as their object the following:
 
(a) The modality, amount, duration and termination of a compensatory benefit in favour of the spouse who has been left in a more economically disadvantaged position as a result of the break-up (art. 233-16 CCCat).
(b) The increase, reduction or exclusion of the economic compensation for work that is provided for the spouse who has dedicated himself to domestic work for the family interest or has worked for the family business without receiving sufficient financial compensation (art. 232-7 CCCat).
(c) The attribution or distribution of the use of the family home and the modalities of such use, provided that the interests of the children are not harmed or the possibilities of meeting the basic needs of the beneficiary spouse are compromised, in which case, the agreement would be null and void (art. 233-21.3 CCCat).
 
In the event that the agreements have been adopted in anticipation of a marital breakdown, after the breakdown, at the time of crisis, if they have been entered into without the assistance of a lawyer independently of each spouse, they may be annulled, at the request of either of them, for three months following the date of adoption, and at the latest until the answer to the application, or of the counterclaim in matrimonial proceedings, in accordance with article 233-5.2 CCCat.
 
Matrimonial property regimes
 
Separation of property regime (arts. 232-1 to 232-12 of the CCCat)
 
It is defined as the one in which each spouse has the ownership, enjoyment, administration and free disposal of all their assets, within the limits established by law. In this sense, the assets of each spouse are those that they had as such when they got married and those that they subsequently acquire by any title.
 
In onerous acquisitions made by only one of the spouses during the marriage, it is understood that when it is registered or unregistered in the name of another, the money comes from the other and, when it comes from the other, it is presumed to be donated.
 
In the case of assets for which there is doubt that they belong to one or the other spouse, it is presumed that they belong to both in undivided halves, with the following exceptions:

• that it is movable property for personal use;
• that they are directly intended for the development of the activity of one of the spouses and are not of extraordinary value.

 
Profit-sharing regime (arts. 232-13 to 232-24 of the CCCat)
 
It is a regime very similar in its configuration to the participation regime regulated in the common Spanish Civil Code. As a conventional regime, it must be agreed by the spouses in the matrimonial chapters, and is governed by the following:

• By the stipulations of the spouses at the time of being agreed and, in everything that has not been foreseen, the provisions of the Civil Code of Catalonia.
• Finally, during its validity, it is governed by the rules of the separation of property regime.

 
Under this regime, each spouse is responsible for the administration, enjoyment and free disposal, both of the assets that belonged to them at the time of marriage, and of those that they may acquire later by any title. This patrimonial autonomy does not prevent the spouses from having the duty to be adequately informed of their patrimonial management, since irregular patrimonial management can lead to the judicial extinction of the regime.
 
After the termination of the regime, the right of one spouse to participate in the profits obtained by the other during the time in which the regime has been in force arises: a community of property is not generated, but only the right to participate in the profits or benefits of the other spouse is conferred. This share is, in principle, half of the earnings of the other spouse, although the spouses may have agreed on a different share, which will only be valid if it is established on a reciprocal and equal basis in favour of either spouse (such as, for example, the one who has generated more profits is entitled to receive 60% and the other 40% instead of 50% each).
 
Community of property regime
 
The Catalan Family Code does not properly regulate the community of property as it is conceived and regulated in the common Spanish Civil Code, but a community of property regime ("règim de comunitat de béns") that allows a status similar to that of spouses married under the community of property regime to be reached through the agreement or capitulation. In this sense, it must be contained in the marriage chapters, that is, in the deed of marriage agreements and will be governed by the provisions established in the Catalan Civil Code.
 
It is, in short, a community regime of a conventional and non-legal nature, by virtue of which certain assets of the spouses are made common. Therefore, the first question to be raised is that we are dealing with the existence of a common patrimony, which can coexist with the private patrimonies of the spouses depending on the agreements reached by them.
 
The following are the exclusive assets of each spouse:
(a) Those that belonged to each spouse before the start of the regime, if they have not been conferred the character of common.
(b) Those acquired by donation or succession title.
(c) Those acquired by real subrogation of other private assets.
(d) Compensation for personal injury, excluding the part corresponding to the loss of earnings during the time of validity of the regime.
(e) Goods for personal use that are not of extraordinary value and the utensils necessary to exercise the profession, even if the acquisition has been made against the common property.
 
Not having the above condition, the following must be considered common goods:
(a) The assets to which the spouses confer this character at the time of agreeing the regime or subsequently.
(b) Earnings obtained from the professional activity or work of either spouse.
(c) The fruits and income of all the assets, if there is no agreement to the contrary.
(d) Profits obtained by real subrogation of other common goods.
(e) Winnings made in gambling by either spouse.
 
Local regimes
 
The Family Code of Catalonia includes a set of institutions, with broad traditional and local roots. However, not all of them are matrimonial property regimes. In some cases they are simple conventional agreements that were added to a matrimonial regime and, in other cases, they are true institutions of commercial law. Therefore, all these institutions of local origin require express covenant in the writing of marriage chapters.
 
Association with purchases and improvements (arts. 232-25 to 232-27 of the CCCat)
 
It is typical of the Camp de Tarragona and other regions. It requires an express agreement in the marriage chapters. It is governed by the custom of the region and, failing that, by the profit-sharing regime. It is a community of earnings, normally made up of the spouses, but to whom the respective ascendants can be associated.
 
By means of this regime, each spouse can associate the other with the purchases and improvements made during the marriage and can also be done reciprocally or by associating with the ascendants of the spouses.
 
Purchases are understood to be the goods that are acquired by the members for constant consideration by the association or are obtained by their profession, industry or work. Improvements are understood to be the increases in value of the assets of any associated person.
 
The administration corresponds to the person who is appointed in chapters and, if not appointed, to all the associates. If an administrator has been appointed, he or she may dispose of the assets that constitute it for consideration, but not guarantee in the name of the association, unless it is for the benefit of the family.
 
The particular debts of each member are exclusively encumbered by his or her share. The settlement of the earnings of each member refers to the time of his death, the association being able to continue among the other members, or to the time of the termination of the regime, and its payment may be made in money or in other assets of the association.
 
Half-for-half agreement or "agermanament" (art. 232-28 of the CCCat):
 
It is a regime specific to Tortosa and must be agreed in the matrimonial chapters. It is governed by the agreements that are agreed upon in its constitution, custom and, failing that, by the rules of the community of property.
 
In this regime, a universal community is formed that includes all the assets that the spouses have when they marry or at the time of granting chapters, those that they acquire while the marriage subsists and the profits and profits of all kinds that they acquire during the union.
 
When they acquire property, either of the spouses may demand that, in its registration, it be stated that it is part of the "agermanament". The administration and disposition of the assets corresponds to both spouses. When the regime is liquidated, the assets are awarded in half between both spouses or between the surviving spouse and the heirs of the predeceased.
 
Pact of "convinença" or "mitja guadanyeria" (art. 232-29 of the CCCat):
 
It is a regime associated with the Aran Valley and also requires an express agreement in the marriage chapters. It is governed by these chapters, and in what they do not provide, by the custom of the Val d'Aran and chapter X of the Privilege called the Cherimónia.
 
It is a partial community regime in that only the assets gained are contributed to the community, and those that are gained while the community subsists, but not all the assets of the community members.
Under this regime, the spouses must contribute equally to the maintenance and expenses of the household and must divide, upon their settlement, the earnings and increases.
 
A characteristic feature of this regime is that it can radically depart from the economic, matrimonial and family institutions, as it is possible for not only the spouses and parents of both, but also strangers to be integrated into the community, agreeing that the assets gained and those to be gained, will remain in community, as long as the association subsists.
 
The doctrine is not unanimous and part of it understands that we are dealing with a manifestation of the profit-sharing regime, rather than a community regime.
 
Conclusions
 
There is no tradition of signing prenuptial pacts except on certain occasions; It is more consolidated to sign marriage agreements to modify the economic regime that would be applied by default. It is increasingly common to sign prenuptial agreements for second marriages. Normally, these agreements usually agree on financial compensation for the woman who, as a general rule, tends to have less economic capacity.