Matrimonial economic regime and matrimonial capitulations
As it is generally known the economic regime that ordinarily governs in Spanish common law (with the exception of the one regulated in some compilations, that is, foral law such as that of Catalonia) is the legal of community property as established in article 1316 of the Civil Code.
On the understanding that there is freedom of agreement, since article 1,315 of the same text establishes the possibility, the definitive right of the spouses to stipulate another regime without further limitations than those reflected in said Code and which are based on elementary issues such as not harming rights already acquired by third parties, not limiting, to the detriment of the other spouse, the equality of rights that must exist between them , not contain stipulations contrary to the laws, common sense, good customs…
In the vast majority of cases, if marriage capitulations are granted, it is to opt for the property separation regime, although the Civil Code contemplates the possibility of establishing a different system through the so-called participation regime (articles 1411 et seq.) in which each of the spouses acquires the >right to participate (hence his name) in the profits obtained by his consort.
This regime is reserved in practice for marriages in which both spouses work and normally have important businesses that allow them to obtain good dividends and that corresponds to what we commonly understand as wealthy classes.
But, focusing on the title of this article, referring to the marital capitulations we are going to look at some considerations following the rules of articles 1325 and following of the civil text so often cited:
So, first of all, it must be said that capitulations must appear in a public deed so they would not be valid with a simple private agreement between husband and wife that it could be effective if it is not harmful to anyone but that it would lack the characteristics and validity of capitulations.
Doubt often arises in marriages about when these capitulations can be granted. On more than one occasion we have heard from one of the spouses expressions such as I should have gotten married in separation of property!. Well, the answer is simple: at any time you can opt for this regime, that is, before or after having married.
In the latter case, it would be a matter of modifying or replacing the economic regime that was chosen at first without forgetting that silence is equivalent in our common law to opting for the community property regime
The law also contemplates the possibility of modifying the agreements contained in the capitulations provided that the same people who made them participate in these modifications and refer to rights contemplated therein.
In these cases, the modification, of course, must be made by public deed and the Notary Public will record this by means of a note added to the original deed containing the capitulations, the dispositions, which are now modified.
All this notarial reflection has its corresponding manifestation in the Civil Registry where the marriage is registered and if it affects real estate (which is quite common) it must be recorded in the Property Registry following the provisions of the Mortgage Law.
Finally, a few more brief notes, such as that the possibility of granting these capitulations in the future is contemplated, that is, thinking of a future marriage.
Of course, in this case, the Code sets a time limit of one year so if the marriage has not been contracted within that period, the what is stipulated there is invalid. Even people judicially incapacitated could grant them as long as they have the assistance of the parents or the guardian or curator in the event that these files have been requested to govern the ordinary life of the incapacitated person.
As is common sense and is regulated by the Civil Code, any stipulation contained in marriage agreements must be adapted to the general rules of validity of contracts so that to urge their invalidity the provisions in this regard must be taken into account without the cancellation being able to harm third parties in good faith.
So far, in broad strokes, what is contemplated by our Civil Code to govern the economic relations of marriage through a historical institution that, however, has not always been, despite its simplicity, well understood or well understood or, if you allow me, “well regarded” socially in closed circles and in ancient times.
Who has not heard of “how little they will trust each other” (spouses) who have granted capitulations? It goes without saying that this corresponds to other times, other eras, with another mentality.
Although each marriage is different and each one is organized as best they know and can, we must not miss out on the legal opportunity that the institution that I have mentioned allows us as a certainly valuable tool < strong>to avoid future problems and establish some rules in advance that facilitate married life.
