Distribution of Matrimonial Assets following divorce in SpainDivision of Assets Under Sociedad de Gananciales
This is the default position in the remaining Spanish regions and has the effect that all goods and assets acquired during the course of the marriage and which are not considered to be ‘private’ goods, are to be considered as belonging to both spouses equally.
Examples of goods and assets to be included in the matrimonial ‘pot’ would be:
- Goods obtained by the work or industry of either spouse.
- The benefits, income or rents obtained from other goods owned by either spouse even if considered to be ‘private’ goods.
- Goods obtained by using common funds whether for the use of one or other of the spouses.
- Businesses and companies founded during the course of the marriage where common funds are used.
If both private and common funds are used then the ownership is split in the ratio in which they were bought.
- Goods purchased initially with common funds that require instalments to be paid later such as hire-purchase will be shared even if the instalments are paid by one of the spouses.
So the income and pension of either spouse may be considered to belong to the matrimonial ‘pot’ and would be potentially divisible between both spouses upon dissolution of the marriage.
However, while all of the previously-mentioned assets are shared equally, those assets considered to be ‘private’ are not and may not be divided between both spouses upon a termination of the marriage.
Take a look to this Wikipedia article (ES) if you want to learn more about Bienes Gananciales.
Property assets divorce Spain – Private Assets
Those assets which may not form part of a matrimonial ‘pot’ are known as ‘private’. These would include the following goods:
- Those rights and assets possessed before the marriage (even where funds considered ‘common’ to both spouses are used to pay later instalments – with the exception of the matrimonial home, fixtures and fittings),
- Those rights and assets obtained during the marriage without payment e.g. inheritances or gifts received by a particular spouse
- Those rights and assets obtained in exchange for a private asset belonging to one of the spouses
- Rights that may only be transmitted via inheritance
- An award for personal damages or damages to private assets
- Clothes and personal belongings not of ‘extraordinary’ value
- Equipment necessary for the carrying-out of a trade or profession unless these are an integral part of a common enterprise
- Assets acquired with an initial payment by one of the spouses even though later instalments are paid using common funds
The Matrimonial Home
The matrimonial home is a special type of asset and is dealt with separately here: The Marital Home After Divorce
Process of Division of Assets in Contentious Divorces
The manner in which marital assets are to be divided may be contained in the ‘Convenio’ agreement where such agreement exists or decided judicially in the case of a contentious divorce where no agreement has been reached between the spouses.
Where there is no agreement, the judge directs the spouses to meet on a specified date to draw-up an inventory of the matrimonial assets.
Failure to appear at this meeting will be taken to mean agreement with the inventory proposed by the other spouse.
Where there is disagreement as to whether an asset should be included in the inventory of matrimonial assets or as to its value then this is set-aside to be resolved by the judge.
Once the inventory is agreed or decided upon by the judge and the declaration ending the marriage is made then either of the spouses may request division of those assets which appear on the inventory.
This request should be accompanied by a proposal as to how the assets should be divided – taking into account the norms established by civil law in this regard.
Having received the request to divide-up the assets both parties will receive an invitation to meet with a court official within 10 days so as to reach an agreement as to the distribution of the assets.
As before, failure to attend will be deemed acceptance of the other spouse’s proposal.
A failure to agree will necessitate a ruling that an expert arbitrator be appointed to decide on the matter.
We propose reading now our divorce in Spain opening article, which draws a bigger picture and opens doors to more specific matters within the topic.