Basic guide to divorce: separation of property

Basic Guide to Divorce: Separation of Property Regime

Before we talk about the advantages and disadvantages of separation of property and community property, we would like to give you a brief introduction with this basic guide to divorce.

The matrimonial property regime is the set of rules governing both the management and the administration of the spouses' assets.

There are different types of matrimonial property regimes and, depending on the one chosen by the spouses, the assets will be managed differently.

This question is fundamental, as it also affects how the liquidation of the matrimonial property regime and the division of assets after a divorce will be carried out and, in any case, it is best to seek the help of lawyers specialising in family law.

How and when is the matrimonial property regime chosen?

The choice of the financial regime is the responsibility of the spouses and can be agreed upon before or after the wedding, always before a notary through a contract known as a marriage contracts,  -a document in which the spouses agree on this issue.

In case of absence of a pact or if the marriage contracts were ineffective, the Spanish Civil Code establishes the regime of community property as supplementary matrimonial property regimeHowever, it will depend on the Autonomous Community in which the marriage was contracted. However, it should be noted that in most of them, the regime that is applied is the community of property regime.

What is the separation of property regime?

The separation of property provides that each partner shall retain ownership and administration of the property obtained both before and after the marriage.

On the contrary, the community of property regime consists of dividing and distributing between the partners the assets that were acquired during the marriage, as well as the debts incurred during this time. And finally, the participation regimewhich is an intermediate between the community of property regime and the separation of property regime, as it allows the spouses to keep their assets separate during their marriage and to share in the profits obtained by the other spouse, once the marriage has been dissolved.

In the following, we will explain what are the characteristics, advantages and disadvantages of the separation of property as opposed to other matrimonial property regimes. 

Characteristics of the separation of property

• Neither spouse shares in the earnings of the other.
• The spouses retain ownership of the property they owned before the marriage and of the property acquired thereafter.
• The spouses are obliged to contribute to the common expenses of the marriage and to the family expenses.
• The debts of the marriage shall be paid jointly and severally, so that both spouses shall be jointly and severally liable for the payment of such debts.

Advantages and disadvantages of separation of property

Among the main ones advantages of the separation of property regimewe found:

• In the case of divorce, even in the case of an uncontested divorce, it will not be necessary to carry out the division of assets that has to be done in the case of a community of property regime, so the divorce process will be much simpler.
• Each spouse retains ownership of his/her own property.
• The distribution of the inheritance is simpler.

However, we must also look at their disadvantages:

• Conflicts can arise if one partner acts on his or her own without the consent of the other partner.
• This is a less solidarity-based regime.

Lawyers for divorces in Málaga

The divorce process can be quite complex, even if it is by mutual agreement. For this reason, we always recommend that, when dealing with a divorce in Malagathe persons involved, contact a good lawyer; specifically, a lawyer specialising in family law.

From Ódice Abogados, Law Firm in MalagaWe deal with a wide range of divorce cases.

Do not hesitate to contact us and ask for advice; we will accompany you throughout the divorce process, defending your interests judicially, resolving your doubts, as well as managing all the corresponding administrative procedures.