What are capitulaciones matrimoniales
Capitulaciones matrimoniales are a contract signed before a notary where spouses (or future spouses) agree on the economic regime of their marriage. In other words: they decide how they will manage money, debts and property during the marriage and what happens to everything if they divorce.
They are regulated in articles 1315 to 1335 of the Civil Code. Article 1315 states literally: "The economic regime of the marriage shall be whatever the spouses stipulate in capitulaciones matrimoniales, with no limitations other than those established in this Code."
Freedom of agreement is broad. You can choose one of the three regimes provided by law or even design a mixed regime, as long as it does not contravene the law, good morals or limit the equality of the spouses' rights (article 1328 CC).
The three economic regimes
Community property (gananciales). Assets acquired during the marriage belong to both. Assets owned before the marriage or received by inheritance or gift remain each spouse's own. Debts incurred for the household or family are community debts. On dissolution, everything is split 50/50. This is the default regime in most of Spain (national Civil Code).
Separation of property. Each spouse owns what they acquire. There is no joint estate. Debts belong to whoever incurs them. On dissolution, each takes what is theirs. This is the default regime in Catalonia, the Balearic Islands, Valencia (since 2008) and some foral territories.
Participation. During the marriage it works like separation of property: each manages their own. But on dissolution, the patrimonial gain of each spouse during the marriage is calculated and the one who gained more compensates the other. It is rarely used in practice, but it is regulated in articles 1411 to 1434 CC.
Default regime by autonomous community
If you do not sign capitulaciones, the default legal regime of your territory applies:
- Community property: common civil law (most of Spain), Extremadura, Castilla-La Mancha, Castilla y León, Murcia, Andalusia, Canary Islands, Asturias, Cantabria, La Rioja, Madrid.
- Separation of property: Catalonia, Balearic Islands, Valencian Community (marriages from 2008).
- Foral community of property: Aragon (consorcio conyugal), Navarre (sociedad de conquistas), Basque Country (foral communication in Biscay, separation in the lowlands of Álava).
- Community property with local variations: Galicia (community property with rules specific to Galician civil law).
Your vecindad civil (civil domicile) determines which regime applies. If a Catalan man and a Madrilenian woman marry without capitulaciones and set their first residence in Madrid, the national Civil Code rules apply (community property), unless within 30 days of the wedding they register at the Civil Registry that they prefer another regime.
When to make capitulaciones
Before the marriage. This is the most common approach. They are signed weeks or months before the wedding and take effect on the day of the marriage. If the wedding does not take place, the capitulaciones have no effect.
After the marriage. This is also possible. Article 1317 CC allows the capitulaciones to be modified at any time. If you have been married under community property for 10 years and want to switch to separation of property, you can do so by executing new capitulaciones before a notary. The change does not prejudice previously acquired third-party rights.
Situations where capitulaciones are especially useful:
- One spouse is a business owner or self-employed. Under community property, business debts can affect the joint estate. Separation of property protects the other spouse.
- Second marriages with children from a previous marriage. Capitulaciones clarify which assets go to each side and prevent inheritance disputes.
- International marriages. If each spouse has a different nationality, capitulaciones remove uncertainty about which law governs the economic regime.
- Unequal estates. If one spouse brings significantly more assets, capitulaciones protect what they contribute without giving up sharing future gains.
What capitulaciones contain
The minimum content is the choice of economic regime. But capitulaciones can include more:
- Inventory of assets each spouse brings to the marriage.
- Agreements on the management of specific assets.
- Gifts between spouses on account of the marriage (donaciones propter nuptias).
- Rules on contributions to marriage expenses.
- Agreements in anticipation of breakdown (valid since the 2005 reform and recognised by the Supreme Court, STS 24 June 2015).
What they cannot contain: clauses contrary to the law or the principle of equality, advance waiver of child maintenance, or agreements that harm third parties in bad faith.
How much capitulaciones cost
The notary fee for capitulaciones matrimoniales ranges from €150 to €300, depending on the length of the document and whether they include gifts or valued inventories.
For standard capitulaciones (choice of separation of property without an extensive inventory), the notary fee is usually around €150-180 before VAT. With VAT (21%) and copies, the total cost is around €200-250.
If the capitulaciones include gifts or contributions of real property, the fee rises because it is calculated on the value of the assets. In that case it can reach €400-600.
In addition to the deed, the capitulaciones must be registered at the Civil Registry in the margin of the marriage entry. Registration is free, but it takes between 1 and 3 months to process.
Requirements to execute capitulaciones
- Both spouses (or future spouses) must appear before the notary. They cannot be signed by proxy, except in exceptional circumstances.
- Capacity. If one of the parties is an emancipated minor, they need the capacity supplement from their parents or guardian (article 1329 CC).
- Public deed. Capitulaciones are void if not recorded in a public deed (article 1327 CC). A private agreement on the economic regime has no effect against third parties.
- ID card or passport of both parties.
- If made before the wedding, a recent full birth certificate of each party and, where applicable, a certificate of life and civil status.
Capitulaciones and divorce
Capitulaciones do not regulate divorce. They regulate the economic regime during the marriage. But the chosen regime determines how assets are divided if there is a divorce:
Under community property, the community must be liquidated: inventorying assets, valuing them, paying joint debts and splitting the remainder 50/50. This process can take months or years if there is disagreement.
Under separation of property, each takes what is theirs. There is no liquidation. If the home is in both names, it is sold and split, or one buys the other's share. It is cleaner and faster.
Breakdown anticipation agreements included in the capitulaciones are valid if they meet certain requirements (they are not abusive, do not harm the children, and were executed with sufficient information). The Supreme Court has upheld them in several rulings.
How to make capitulaciones online
At Notaría Online we process capitulaciones matrimoniales by video conference. Both spouses sign from wherever they are, without travelling to the notary's office.
The process takes 5-7 working days from when you send us the documentation. If you need the capitulaciones by a specific date (before the wedding, for example), let us know at least 2 weeks in advance.