Spain regulates three models of couple's relationship:
MARRIAGE between persons of opposite sex
REGISTERED PARTNERSHIP between persons of the same sex
DE FACTO PARTNERSHIP between persons of opposite or same sex
The first category is regulated under the Spanish Civil Code in most of the territory, except in six autonomous communities that have their own civil legislation as explained below. The second category has no national law, 13 autonomous community have their own legislation: Andalucía, Aragón, Asturias, Cataluña, Extremadura, Galicia, Baleares Island, Canarias Island, Madrid, Murcia, Navarra, País Vasco y Valencia. And the third category was developed with the Law 1/2005, 1 of July, respect to married and has been recognized under the principle of constitutional equality for all, married and partnership between persons of opposite or same sex. Since May of 2009 in Spain, the Supreme Court denied the judges the possibility of opposing homosexual marriage.
In Spain, there are no rules that differentiate same-sex marriages from marriages of different sexes. And the same is true for common-law couples. So, the equality, the right to non-discrimination and the free development of personality without restrictions linked to sexual orientation require legal recognition of same-sex or opposite couples or marriages; and protection of their rights remains a pending task of legislators and courts.
Links to applicable regulations
MARRIAGE AND SUCCESSION:
Disciplined by Spanish Civil Code, approved by Royal Decree of 24 July 1889, applicable in: Autonomous Communities of Andalusia, the Canary Islands, Cantabria, La Rioja, Castilla-La Mancha, Castilla y León, and the Autonomous Communities of Valencia, Extremadura, Madrid, Murcia, Asturias, as well as the autonomous cities of Ceuta and Melilla. But 6 regions have their own civil legislation and in these the Spanish civil code has subsidiary application. These Autonomous Communities are: Navarra: Law 1/1973 of 1 March 1973, approving the Compilation of the Civil Law of Navarre, modified by the Foral Law 5/1987, of 1 April, of Navarre; Baleares Islands: Legislative Decree 79/1990, of 6 September, approved the consolidated text of the compilation of the civil law of the Balearic Islands. Which approved the Consolidated Text of the Compilation of Civil Law of the Balearic Islands and the new wording of some articles given by Law 7/2017, of 3 August, which modifies the Compilation of Civil Law of the Balearic Islands; Cataluña: Law 25/2010, of 29 July, of the second book of the Civil Code of Cataluña, relating to the person and the family, and Law 10/2008, of 10 July, of the fourth book of the Civil Code of Catalonia, relating to successions; País Vasco: Law 5/2015, of 25 June, on Basque Civil Law and Law 7/2015, of 30 June, on family relations in the event of separation or rupture of the parents of the Basque Country and successions; Galicia: Law 2/2006, of 14 June, on Galician civil law; Aragón: Legislative Decree 1/2011 of 22 March, of the Government of Aragon, approved, under the title "Code of the Foral Law of Aragon", the Revised Text of Aragonés Civil Laws.
The civil union between persons of the same or different sex in Spain has the particularity that there is NO law on de facto couples at state level. Thus, most of the Autonomous Communities, also those that do not have a foral or special civil law of their own, have regulated de facto couples from a perspective that is not strictly administrative.
2.1. In Spain there are Communities that do not have their own foral or special civil law, such as Valencia, Madrid, Asturias, Andalusia, the Canary Islands, Extremadura, Cantabria and Murcia, but which have regulated in autonomous laws for their region (autonomous community) the civil effects of the cessation of coexistence more uxorio:
- In the Community of VALENCIA, the first Law 1/2001, of 6 April, regulating de facto unions was repealed by Law 5/2012, of 15 October, of the Generalitat, of formalized de facto unions of the Comunitat Valenciana. However, the validity and application of Law 5/2012 was suspended, from 18 July 2013, until it was finally declared unconstitutional by Constitutional Court Decision 110/2016 of 9 June. (BOE-A-2016-6838). Likewise, article 1.1 and articles 2 and 6 to 14 were declared null and void, with the effects indicated in legal basis 10 of the aforementioned sentence.
- Law 11/2001, of 19 December, of the Community of MADRID, of the domestic partner. This law contemplated an economic regime of coexistence in defect of pact (article 4.2) that has been declared unconstitutional due to the lack of competence of this Autonomous Community in matters of civil legislation (Sentence of the Constitutional Court nº 81/2013, of April 11, 2013).
- Law 4/2002, of May 23, of ASTURIAS, of Stable Couples, whose art. 5 .1 establishes that the members of the stable couple will be able to regulate the personal and patrimonial relations derived from the coexistence, by means of public or private document, with the possibility of including economic compensations that agree for the case of dissolution of the couple, under the observance of the applicable legality.
- Law 5/2002, of 16 December, of ANDALUCÍA, of the domestic partner. This Law establishes, in the event of dissolution, that the members of the stable couple shall be jointly and severally liable to third parties for the obligations contracted for the expenses necessary for the maintenance of the house (article 12.4).
- Law 5/2003, of 6 March, of the CANARIAS, of the domestic partner. This Law determines the economic regime of cohabitation in the absence of an agreement between its members (article 7.3).
- Law 5/2003, of 20 March, of EXTREMADURA, of the domestic partner. This Law establishes its economic regime in the absence of a pact (article 6.2), recognises compensation, in the event of dissolution of the couple, in favour of that of its members who are in a situation of economic inequality (article 7), and regulates, for the same hypothesis, the guardianship and custody of the minors in foster care (article 8.2) and of the children (article 9).
- Law 1/2005, of 16 May, of CANTABRIA, regulating de facto couples. This law defines its economic regime in the absence of a pact (article 8.2), provides for compensation in favour of the cohabiting party in a situation of unequal assets when the couple ends (article 9), provides for the application of "the civil legislation in force on paternal and filial relations" to the "guardianship and custody of common children and the regime of visits, communication and stay" (article 10), and the same applies in respect of foster children (article 11.2).
- Law 7/2018, of 3 July, of the domestic partner in the Autonomous Community of the REGION OF MURCIA, provides in its Preamble that article 39 of the Constitution states that "the public authorities shall ensure the social, economic and legal protection of the family", where de facto couples are found understood as a new social model of the family.
2.2 In Spain six regions in Spain has their own foral or special civil law which regulate the effects of the cessation of coexistence more uxorio:
- CATALUÑA: The first autonomous law was passed in 1998, "Law of Stable Couple Unions". They are currently regulated by Law 25/2010, of 29 July, of the second book of the Civil Code of Catalonia, relating to the person and the family. Specifically, in Chapter IV of Title III of this law, which reads "Stable cohabitation in a couple". Decree Law 3/2015, of 6 October, modifying Law 25/2010, creates the Registry of stable couples; and Order JUS/44/2017, of 28 March, approves the Regulations of the Registry of stable couples of Catalonia.
- NAVARRA: Foral Law 6/2000, of 3 July, for the Legal Equality of Stable Couples. This Law determined its economic regime (articles 5.3 and 7) and contemplated a periodic pension or economic compensation for that of its members who were in a situation of patrimonial inequality on the occasion of the dissolution of the couple (articles 5.4 and 5.5): both provisions have been declared unconstitutional by Judgment of the Constitutional Court, no. 93/2013, of 23 April. In this case, not due to the lack of competence of the Comunidad Foral over the civil effects of this relationship, but in the violation of the personal freedom of the members of the couple (article 10.1 of the Constitution) which, according to the Court, occurs with the establishment of certain civil rules of necessary law, applicable in the absence of an agreement of its members, even if they have not shown their will to adhere to them.
- In the Community of GALICIA, the Third Additional Provision of Law 2/2006, of 14 June, relating to the Rules regulating civil law in Galicia, equates de facto marriage to marriage. Shortly afterwards, Law 10/2007, of 28 June, reformed again the Third Additional Provision to reserve this equality for those couples registered in a specific Registry.
- In ARAGÓN, section 3 of chapter II of title II of the Code of Foral Law, approved by Decree 1/2011 of 22 March, which bears the heading "Effects of the rupture of the cohabitation of parents with dependent children", is applicable to any "family relations in cases of rupture of the cohabitation of parents with dependent children, including cases of separation, nullity and divorce and proceedings concerning guardianship and custody of minor children" (article 75.1).
- Law 18/2001, of December 19, of the BALEARES Island, of Stable Couples, whose art. 4 regulates that the members of the couple can validly regulate by any form admitted in law, oral or written, the personal and patrimonial relations derived from cohabitation, in addition to the economic compensations in the case of extinction of cohabitation, with the limit of the minimum rights established by this Law, which are inalienable until the moment they are required.
- Law 2/2003, of 7 May, of the PAÍS VASCO, regulating de facto couples. This Law establishes a supplementary economic regime, in default of agreement, to which its members "may adhere", in which a periodic pension or economic compensation is provided for that of its components that was in a situation of patrimonial inequality after the extinction of the couple (article 6).
Residual de facto cohabiting partnerships exist, even if not regulated.
The marriage is born of an agreement of wills of the contracting parties, and once the legally established solemn requirements have been fulfilled, this constitutive act generates the marital status (equally for the same-sex or opposite-sex couples). Upon this, the consequences and personal eefects and patrimonial effects, are marked by the law, without possibility in some suppositions, or with relative possibility in others, of modification or alteration on the part of the spouses.
Spanish Civil Code: The Civil Code (which we recall applies in the Autonomous Autonomous Communities of Andalusia, Canary Islands, Cantabria, La Rioja, Castilla-La Mancha, Castilla y León, Valenciana, Extremadura, Madrid, Murcia, Asturias, as well as in the autonomous cities of Ceuta and Melilla); regulates as economic regimes of marriage, the regime of marital property is community property (Arts. 1344 et seq.), participation (Arts. 1411 et seq.) and separation of property (Arts. 1435 et seq.): supplementary legal regime of first degree and presumed: Art. 1316 of the Civil Code foresees that, in the absence of capitulations (marriage contracts) or when these are ineffective, the regime will be that of the community of property; second degree supplementary regime: If the spouses agree in marriage settlements that the marital property regime will not govern between them, but they do not establish any regime, or if the marital property regime is constantly extinguished without a different one being agreed, there will be a separation of property between the spouses, Art. 1435 (Nos. 2 and 3) provides; and participation regime: It is a conventional regime that will only govern a marriage when it has been expressly agreed in capitulations. However, there is a set of rules, referring to the patrimonial effects of marriage that apply to it, regardless of its economic regime. This is known as the "primary matrimonial regime". It is included in the first of the chapters of the Civil Code, within Title III of Book IV, dedicated to the matrimonial property regime, under the expression "general provisions".
As for those provided for in the own foral or civil law, are divided between the application of the partnership of gains or the separation of assets, provided they have not agreed on a property regime before contracting marriage.
In defect of previous pact they will be governed by the society of gananciales:
- Law 5/2015, of 25 June, on País Vasco Civil Law. Title III deals with the system of property in marriage and in its first chapter establishes a system of free choice, before or after the celebration of the marriage. And in the event that there is no pact, the system of marital property regulated in the Civil Code shall apply. Although for the province of Vizcaya the Jurisdiction of Bizkaia applies, the second chapter of this title establishes that, following tradition, it will be understood that the system of foral communication that already regulated the Jurisdiction governs between the spouses and by virtue of which all property, movable or immovable, of whatever origin, becomes common.
- Law 2/2006, de 14 de junio, de derecho civil de Galicia. TÍTULO IX. The family economic regime. The matrimonial economic regime will be the one agreed by the spouses in marriage contracts (art. 171). In the absence of an agreement or its ineffectiveness, the regime will be the joint-stock company (art. 172). The spouses may agree in marriage settlements the total or partial liquidation of the company and the bases to carry it out, with full effectiveness upon dissolution of the conjugal society. The capitulations may contain any stipulation relating to the family economic regime and inheritance, with no limitations other than those contained in the law (art. 174).
- Legislative Decree 1/2011, of 22 March, of the Government of Aragón. Article 193 regulates the conjugal consortium, which is equivalent to a community of property.
- Compilation of 1973, modified by the Law of 1987 for Navarra: In the absence of a pact, it regulates the regime of conquests, similar to a community of property.
In defect of previous agreement they will be governed by the separation of goods:
- Baleares Islands: Legislative Decree 79/1990, of 6 September, approved the consolidated text of the compilation of the civil law of the Balearic Islands. Art. 3, matrimonial property regime. The marital economic regime shall be that agreed in chapters, formalised in a public deed, before or during the marriage and, in the absence of these, that of separation of property.
- Chapters I (Second Section) and II of Title III of Law 25/2010, of 29 July, of the second book of the Civil Code of Catalonia, says that "in the absence of a pact or ineffectiveness of the provisions of the matrimonial chapters, the economic regime is that of separation of property, regulated throughout Arts. 232.1-232.12 of the CCCat.
- Valencia: Law 10/2007 on the matrimonial economic regime establishes the regime of separation of assets as a legal regime in the absence of an agreement on the separation of assets.However, this law was declared unconstitutional on 31 May 2016 when Judgment No. 82/2016 of 28 April 2016, issued by the Plenary of the Constitutional Court, was published in the Official State Gazette, establishing that the supplementary legal matrimonial property regime in the Valencian Community, as in all territories under ordinary law, is that of the community of property provided for in the Civil Code. That is to say, the regime of separation of bines in the Valencian community was in force since the law came into force (1 July 2008) until the Sentence of the Constitutional Court that annulled it (1 June 2016), in such a way that all marriages married since 2 June 2016, except for marriage settlements before a notary who by mutual agreement establishes another economic regime, the applicable regime will be that of marital property.
The responsibility of the community of property, members of the community of property, will normally coincide with the obligations in charge of it, but this may not be the case and, in the case of a third party, the action of both or one of the spouses causes the immediate responsibility of the community of property, provisionally, because it will definitely be or not in charge of the same, depending on the case.
In the case of marriage under a community of property regime: the profits or benefits obtained indistinctly by either of them during the marriage, which will be attributed to them by half upon dissolution of the regime, become common to the spouses. The dissolution of the marital property regime not only implies the end and dissolution of the community of marital property, but also the division of profits between both spouses, that is, the liquidation, as expressed in Art. 1396: Dissolution of the company, will proceed to its liquidation.
In the case of a marriage with a regime of separation of property, Art. 1437 of the Civil Code states that each spouse shall own the assets (and the ownership of the rights) that he or she had at the time of the marriage and those that he or she later acquires by any means. However, after a more or less long cohabitation, it is difficult to know, and even less difficult to prove, which assets or rights belonged or were acquired by one or the other, except in the properties registered in the Property Registry in which the mortgage principles play. Art. 1441 of the Civil Code establishes, with respect to this problem, that when it is not possible to prove which of the spouses owns some property or right will correspond to both by half. It is a presumption iuris tantum: the goods and rights are presumed to be of common ownership, pro indiviso, by half, unless one or the other of the spouses proves that they are of their sole and exclusive ownership. Art. 1442 of the Civil Code, another iuris tantum presumption, this one, for the benefit of creditors and provided that the spouses are not judicially or de facto separated, applicable when a spouse is declared bankrupt: it is presumed that the assets acquired by the other spouse for valuable consideration during the year prior to the declaration of bankruptcy were in their half donated by the bankrupt.
In the case of a marriage with a participation in acquisitions regime, after the extinction of the regime the same must be liquidated, so that each spouse can make his or her own share of the profits of the other. In order to do so, it will be necessary to calculate the gain experienced by the patrimony of each spouse, and the other will have a share of such gain. Such gain is none other than the difference between the initial and final patrimony of each spouse, as expressed in Art. 1417 of the Civil Code upon extinction the gains will be determined by the differences between the initial and final patrimony of each spouse. When the estates of both spouses have had profits there will be no participation of one in the profit of the other, but simply the one that has had less will have participation in the difference of profits (simple arithmetic question), as provided in Art. 1427 of the Civil Code: when the difference between the final and initial estates of one and the other spouse shows positive results, the spouse whose patrimony has experienced less increase will receive half of the difference between his own increase and that of the other spouse.
In the event of death of the spouse, the situation differs in case testate and intestate succession, and it´s depending of territories in Spain.
In Spain it is necessary to determine in which territories the person who dies may dispose "mortis causa" of all his goods with absolute freedom, or if on the contrary such faculty is subject to limitations in whole or in part, taking into account the theory of the absolute freedom to test or the theory of the legitimate ones, where the testator can freely determine the destination of part of his goods, but there are certain (legitimate) persons who have to receive the part of the goods that the law reserves in his favour. Within the theory of the legitimate we find that the legitimate can: Forced distribution through a single quota: Catalonia; Variable quota: Balearic Islands; Free distribution: Aragón and Vizcaya; With forced distribution portion and free distribution portion: Improvements in the Civil Code. Together with both systems and from a purely theoretical point of view, the system of absolute forced succession can be added, in which the freedom to test disappears completely and which is regulated in the Civil Code in Arts. 657-1087 of the Civil Code. In the absence of a will, the rules of the Civil Code and the relatives indicated in the will (intestate succession) come into play. Together with the succession system regulated in the Civil Code, the different systems established by the provincial legislations coexist in this country. In general, in the area of inheritance law, these are characterized by a greater freedom to test, as well as the admission of the figure of pacts of succession in most of the foral rights. A specific case is that of the Foral Law of Navarre, where the testator has absolute freedom to dispose of his assets, with two exceptions: That relating to the children of previous marriages, as well as those derived from the usufruct of fidelity established in favour of the widowed spouse.
The recognition of effects in various legal provisions (leases, fiscal, administrative, social, etc.) does not entail attributing to them a legal status similar to that of marriage. It will be necessary to differentiate between formalised and non-formalised domestic partner, since only the former are subject to the legal effects recognised in the different autonomous regulations.
DE FACTO PARTNERSHIP
In Spain, the courts, in their inexcusable duty to resolve conflicts, have been obliged to pronounce on the personal and patrimonial consequences derived from the rupture of the de facto union. In some cases, they resorted to the rules regulating the effects of marital dissociation (applying them by analogy ex Art. 4.1 of the Code of Civil Procedure) for their appropriate resolution, not without hesitation and even contradictions, and in others, to the general rules of the Code of Civil Procedure and invoking the general principles of law. The recognition of effects results from the jurisprudential construction through the applica.
Based on the national report prepared by Ana María Pérez Vallejo and María José Cazorla González