¿Cómo se reparte un piso o casa en una separación?

Are you in a marital separation and you have a half-owned property? Are you looking for information on how to sell your family home after a divorce? Well, here we are going to talk to you about all the aspects that you should take into account to carry it out in the best way.

The family home is the biggest source of disputes during a separation or divorce in Spain. Many married couples do not consider a prenuptial agreement or how family law works when considering the requirements for buying a flat in Barcelona for the first time.

Now that you’re in the difficult situation of figuring out how to split property in a divorce, it’s worth knowing there’s an easy way and a hard way:

– Mutual agreement: through a mutual consent or convenio agreement, both parties agree on the dissolution of the marriage, which includes the splitting of property and any parental responsibilities.

– Contentious divorce: where there’s no agreement, anything can happen. Outcomes range from the original owner being able to use, rent and sell their property to it being sold at public auction with any earnings split 50-50. The outcome depends on a number of situational factors, as well as the autonomous community where you reside in Spain.

The inclusion of children in a divorce case in Spain complicates matters significantly. In most of cases, the custody of children is granted to their mother or both parents. Therefore, in most of cases the right to use a property is granted to the mother – regardless of who is the lawful owner.

In this article we will cover how to split property in a divorce in Spain by mutual agreement, contentious divorce and how this plays out depending where you live.

The Two Types of Divorce and Separation in Spain

Below we’ll look deeper at how to split property in a divorce Spain with mutual consent or in a contentious divorce.

Mutual consent

When both parties agree on the dissolution of the marriage, they can sign an agreement (known as a convenio in Spanish) before a public notary.

The convenio includes details of everything concerning the marriage:

-How assets are to be separated

– Parental responsibility

– Child maintenance

– Spousal maintenance

– Any other financial aspects (e.g. stocks, bonds, retirement accounts, pensions, business interests, cars, etc.)

The divorce agreement will need to be approved by a judge in a Spanish court of law.

In many divorce cases in Spain, one party willingly agrees to walk away. This is the easiest method when considering how to split property in a divorce case in Spain.

However, a mutual consent agreement is not always possible.

Contentious divorce

Where there is no agreement between parties, you will need to file for divorce in a Spanish court of law.

It’s up to the judge how any properties will be split – as well as any parental responsibilities, maintenance payments, and other financial aspects. The judge will ask both parties to appear at a specified date and present their respective inventories (if you don’t turn up, the court will base any outcomes on the other spouse’s inventory).

Article 1397 of Spain’s nationwide Código Civil explains the full range of assets to include in an inventory, but know that properties are of course included. Any liabilities concerning a property (debts, mortgages, etc.) must also be included.

Spanish common law considers marriages as a sociedad de gananciales. The default application of this law is that any assets acquired through common funds during a marriage must be split 50-50.

The outcome, however, depends on where you live (see below) as well as any situational circumstances that require immediate provisional measures.

Possession of a property in a divorce in Spain – who gets the house?

If a contentious divorce case ends up with one spouse identified as the lawful owner, that doesn’t mean they can live in it or even sell it straight away.

In the same way, if both spouses are granted 50-50 rights to the property and any earnings from a future sale, neither does that mean they can both continue living there.

During a contentious divorce case, the judge may decide to give one of the spouses the right to live in the property for a set period of time. This can happen in the following situations:

– If the mother is granted custody of children involved in a divorce case, she will likely be granted the right to live in a property regardless of which spouse is the lawful owner

– Where no children are involved, a judge can grant possession of a house to a non-owning spouse or partner if he or she is determined in need of protection – for lack of income, illness, or any other financial mitigating factor

– If there’s an outstanding mortgage, the judge can grant usage of the property to each spouse for alternating periods of time

– In exceptional cases, property permitting, the judge could determine the house should be partitioned and a wall installed

Where there are no children involved, and a property in a divorce is jointly owned, the judge will expect partners to agree on its use. If they can’t, the property will be sold at public auction with any proceeds split accordingly. This is unfavourable to both parties as the sale will likely go for much lower than a properties’ market value.

In cases of domestic violence – more often than not from the male spouse in Spain – there will typically be a prosecution and a restraining order put on the male from visiting the female spouse. Regardless of whether the male spouse owns the property, it’s likely the spouse will be granted possession and the male unable to even go near it.

Divorce Laws in Spain Depend on Where You Live

There are two main understandings of a marriage in courts of law in Spain:

– Under Spain’s Código Civil, a marriage is considered a sociedad de gananciales.

– In the autonomous communities of Aragón, the Balearic Islands, Catalonia, Galicia, Navarra, the Basque Country and Valencia, a marriage is considered a separación de bienes.

Depending on where you live, and where you file for divorce, the outcomes could differ dramatically. This is predominantly the case where no mutual agreement exists, so the question of how to split property in a divorce falls back to precedence and jurisdiction.

Código Civil regulations in Spain – sociedad de gananciales

Spanish common law (the código civil) considers that any gains, benefits and assets that either spouse acquired, purchased or inherited before and during the marriage will become common assets.

The list of common assets can include:

– Goods or assets obtained by the work of either spouse

– Any benefits, income or rent from goods and assets

– Goods obtained by common funds regardless of whether they are privately used

– Any business or companies set up with common funds

– Pensions and retirement accounts

– The family home and any other properties

If the código civil applies to your divorce case, expect for each spouse to retain 50% of the property rights.

There are exceptions for private assets possessed before the marriage, assets obtained during the marriage but without payment (e.g. inheritances), personal damages, equipment or assets necessary for trade or professions, and any clothes and personal belongings not of extraordinary value.

Aragón, the Balearic Islands, Catalonia, Galicia, Navarra, the Basque Country and Valencia – separación de bienes

In the above autonomous communities in Spain, each spouse retains the properties held in their own names during a divorce case (unless otherwise agreed through a convenio).

Either spouse is free to use, sell or rent properties they own. If the spouses wish to split property rights or proceeds from a sale, they must register the house in their joint names. If the property was bought with an unequal proportion of funds (say one spouse paid 75% and the other 25%) they will be entitled to that percentage.

However, in cases where one spouse can prove they purchased the property but it is registered in the other spouse’ name, the law determines the property has been donated.

Rights will only be split 50-50 when it is impossible to determine which spouse is the lawful owner.

FAQ: How to split property in a divorce in Spain

Can I sell my house before divorce?

So long as there is mutual agreement, both parties can sell their family home before or after divorce proceedings have finalised.

When the divorce case is in the jurisdiction of the sociedad de gananciales, a convenio would need to be signed before a notary with any agreements on rights to the proceeds of the sale of a property included.

When the divorce case is in the jurisdiction of the separación de bienes, it makes no difference whether a property is sold before or after divorce proceedings.

How to split property when ending a civil partnership in Spain?

Spanish courts do not make any rulings over children, maintenance or splitting of property and assets when ending a civil partnership.

Any mutual agreements must include parental responsibilities where applicable and the rights to a property – these agreements must be supplied along with the application to file for termination of a civil partnership.

Unlike divorces in Spain, both parties in a civil partnership must have lived apart for at least six months prior to applying for its termination.

What happens if my partner and I are not married?

During a separation, any partners seeking rights to a property must make legal claims.

How to split property if I am not a Spanish resident?

You are not required to divorce in the same country where you were married. So long as you have connections or nationality to a third country, you can apply to divorce there regardless of whether you have residency in Spain.

If you’re a foreign national resident in Spain and you are married to a Spanish national, then Spanish law will apply according to the jurisdiction where you file for divorce.

If a married couple are both foreign nationals but with residence in Spain, you can file for divorce in a Spanish law. Where there is a mutual agreement, Spanish law by definition applies. You might first need to check if the relevant Spanish court will accept your application, however.

European regulations confirm you can file for divorce in Spain in the following additional circumstances:

– You and your spouse had your last habitual residence in Spain

– One of the parties still has residency in Spain

– You are applying for divorce, and your spouse lives in Spain

– If you are applying for divorce and you live in Spain, or have lived there for at least a year

Bcn Advisors is a leading real estate agency in Barcelona. If you are planning to sell a property in Barcelona or need advice on splitting a property in divorce, don’t hesitate to get in touch. Find out more about real estate commissions when selling a house in Spain here.