The concepts of separate and community property have a great impact on the legal and financial situation of couples, especially in the context of marriage and civil partnerships. It is essential to understand the differences between these two types of property in order to protect the interests of each party.

The distinction between separate and community property is particularly important in legal situations such as inheritance, wills, debts and divorce, as it determines how assets and liabilities are divided between the parties involved. It is essential that couples understand their rights and obligations in relation to these two types of property in order to avoid legal and financial complications in the future.


1.- Separate Property


Firstly, separate property is property that belongs exclusively to one person before the marriage or that is acquired individually during the relationship. This can include property, bank accounts, investments or other assets held in the name of one of the partners. It is important to note that in the event of separation or divorce, personal property is not automatically shared with the other party, unless there is a specific agreement to the contrary.

Article 1346 of the Civil Code states:

They are the property of each of the spouses:

  • 1.° The goods, animals and rights that belonged to him at the beginning of the marriage.
  • 2.° Those which he/she subsequently acquires without payment.
  • 3.° Those acquired at the expense of or in place of private property. For example, the money obtained after the sale of a privative building, which remains privative even if it is deposited in a joint bank account, as established in the judgment of the Supreme Court 3266/2022.
  • 4.° Those acquired by right of withdrawal belonging to only one of the spouses. This assumption also applies to the assumption of the right of preferential acquisition, explained in our article on the subject, belonging to one of the spouses, as established in the resolution of 8 May 2008 of the General Directorate of Registries and Notaries.
  • 5.° The property and the patrimonial rights inherent to the person and those that cannot be transferred inter vivos.
  • 6.° Damages caused to the person of one of the spouses or to their personal property.
  • 7.° Clothing and objects of personal use that are not of exceptional value.
  • 8.° The instruments necessary for the exercise of the profession or trade, except when they are an integral part of or belong to an establishment or exploitation of a common nature.

The goods mentioned in paragraphs 4.° and 8.° do not lose their character of private property by the fact that their acquisition has been carried out with common funds; but, in this case, the company will be creditor of the spouse owner for the value satisfied.


2.- Community Property


On the other hand, community property is that which is acquired during the marriage or civil union and which is considered to be the common property of both parties. This includes earned income, jointly acquired property, joint savings and other assets acquired during the relationship. In the event of the dissolution of the marriage, joint property is usually divided equally between the spouses, depending on the laws and regulations of each jurisdiction.

Article 1347 of the Civil Code, states that community property includes:

  • 1.° Those obtained by the work or industry of one of the spouses.
  • 2.° The fruits, rents or interests that produce as much the private goods as the community property.
  • 3º Those acquired for valuable consideration at the expense of the community property, either the acquisition is made for the community or for only one of the spouses.
  • 4º Those acquired by right of withdrawal of ganancial character, even if they were with privative means, in which case the company will be debtor of the spouse for the satisfied value.
  • 5º The companies and establishments founded during the validity of the company by any of the spouses at the expense of the common property. If to the formation of the company or establishment they concur privative capital and common capital, the provisions of the article 1354 will be applied.


3.- Special Cases


There are also special cases:

  • Property donated or bequeathed to the spouses jointly and without special designation of parts, always in the community, shall be considered as community property as long as the generosity has been accepted by both and the donor or testator has not stipulated otherwise.
  • The property acquired for a price or consideration, in part community property and in part private property, corresponds pro indiviso to the community property and to the spouse or spouses in proportion to the value of the respective contributions.
  • The goods purchased in instalments by one of the spouses prior to the formation of the company are always of a private nature, even if all or part of the deferred price is paid with money belonging to the community, in accordance with article 1357 of the Civil Code. With the exception of the house and the family trousseau, it is assumed that the contribution of each of the spouses will be taken into account.


Matrimonial Property Regime In Spain


The matrimonial regime in Spain is a fundamental aspect of the law which regulates the way in which property is managed during the marriage and in the event of separation or divorce. It is the economic organisation of the conjugal society and consists of a set of rules that regulate the effects of the marriage, both in the relationship between the spouses and in relation to third parties.

In Spanish legislation, there are three main types of matrimonial property regime: the regime of separation of property, the regime of participation and the regime of joint property.


1.- Establishment Of The Matrimonial Property Regime

In order to determine the matrimonial regime, it is established that:

  • 1º – The freedom of the spouses to determine their matrimonial regime by means of matrimonial capitulations.
  • 2º – If the spouses do not determine it, the regime established by the civil neighbourhood is applied:
    • Common Law: Community of Acquisition
    • Catalonia and the Balearic Islands: Separation of property.
    • Navarre: Regime of conquests
    • Aragón: Conjugal Consortium
    • Biscay: Foral communication of property
    • Valencian Community: Separation of property
    • Galicia: Community of profit and loss
    • Fuero del Baylío: universal community


2.- Separation of Property


The regime of separation of property is one in which each spouse retains the ownership and management of their own property individually. This means that the debts and obligations of one spouse do not affect the assets of the other, and each spouse is responsible for his or her own profits and losses. This system gives each party financial autonomy, but it can be complicated in the event of separation as there is no community property to divide equally.


3.-Participation Regime


On the other hand, the participation regime implies that each spouse manages his or her property independently during the marriage, but at the end of the relationship an equitable distribution of the economic benefits obtained by each party is established. It is an intermediate form between separation and community property.

The aim of this regime is to encourage the equal participation of both spouses in the family economy and to promote equality in financial decision-making.


4.-Joint Property


Finally, the community property regime is the most common in Spain and is based on the idea that the assets acquired during the marriage belong jointly to both spouses. This means that profits, property and debts acquired during the marriage are the joint responsibility and property of both. In the event of a divorce, the jointly acquired assets are equitably distributed.

In summary, separate property and community property are fundamental concepts in the legal and financial lives of couples. Understanding the differences between these two types of property is essential to protect the interests of each party and to avoid conflicts in the event of separation or divorce. Clarity and transparency in the management of matrimonial property contribute to the stability and harmony of the couple’s relationship.

The matrimonial property regime in Spain is a legal figure that establishes the rights and obligations of the spouses in property matters. Each system has its advantages and disadvantages, so it is important that couples choose the one that best suits their needs and particular circumstances. Understanding and knowledge of these regimes is essential to ensure harmonious cohabitation and a fair resolution in the event of separation.

At Quikprokuo, we have been advising and resolving disputes relating to separate and community property for over 20 years.

If you need help in this area, please contact us.