Statistics show that all over Europe the traditional family is changing and the institution of marriage is giving way to different models of coexistence, for example common law marriages. Both common law and traditional marriages bind two individuals together and Spanish law procures rights and duties for the individuals within both of these unions.
Whilst the institution of marriage in Spain is regulated by the national civil code (in its latest amendment law 13/2005 of 1 July), most regulations applying to common-law marriages are governed by laws from the autonomous regions, which can vary greatly. Nevertheless there are certain common traits among the different legislation.
Although in Spain a married couple can separate or divorce, there are no specific procedures for the break-up of a common law marriage. This can lead to fairly complicated situations, especially if there are children involved.
What is common law marriage in Spain?
Common law marriage in Spain can be defined as the freely chosen, stable union of two individuals with an emotional relation similar to that of two married people.
Of course the two individuals:
- Cannot be married (in few regions it is sufficient to be legally separated from a previous marriage)
- Need to have the common interest to create a family.
- Have to be of age
- Cannot already be in another common law marriage
How can common law marriage be proven and registered?
In order to be legally valid the union has to be registered in the Regional Common Law Marriage Registry (Registro de Uniones de Hecho) where they live. In order to prove the stability of the relationship the couple has to prove that they have been living together for at least one complete year (in some autonomous regions this period is two years). Often the couple will have to produce rental contracts, residency certificates or an enrolment certificate on the census in the town where they live (Empadronamiento).
The registration can be supplemented by additional documents, for example notary deeds ratifying the union between the two individuals. The deeds will also include any economical agreements, both during the common life and in case of a break up, plus the responsibility regarding any children from the relationship. As an alternative to the public deeds a private contract between the parties can be also accepted.
Registration requirements for the Common Law Marriage Registry vary from region to region, but everywhere in Spain a certificate of marital status is required proving that neither party is married at the time. This certificate is issued by the national civil registry, although if the person is foreign the document will have to be apostilled and officially translated if not in Spanish. This certificate will be valid for 3 months. Additionally the couple will have to certify that they are not blood relatives (at least at the second level).
Annulment of common law marriages
The annulment will be possible by:
- Common agreement.
- Death of one of the parties.
- Effective separation for an extended period of time (the precise period depends on the region).
- Marriage of one of the parties.
- Unilateral wish of one of the parties (the other party will have to be officially notified).
If the union is not registered in the “Registro de Uniones de Hecho” or if there are no contracts or no deeds between the parties, the separation will be governed by the standard Spanish legal procedures.
If the union is registered in the “Registro de Uniones de Hecho” the laws regarding the common law marriages will be applicable. This will usually imply economical compensation for the party who does not have a regular income, who took care of the household etc.
If one the two parties die, the outcome depends on the region where the union is registered. For example in Andalusia the surviving party will only have right of the usufruct of the common residence for one year, while in Cataluña the surviving party could claim up to a quarter of the total inheritance (subject to various factors).
If there is an agreement (private contract or deed) between the parties regarding the separation, the measures considered in the contract will be enforced. This will also include economical agreements and agreements relating to the children from the relationship.
The importance of an agreement between the parties
In general a well-written agreement between the parties of a common law marriage can greatly reduce the financial and emotional costs of breaking up, it will enable the couple to realistically face any problem and help resolve disagreements. This is especially important when the family has children, either their own or from previous relationships, or if the couple have substantial assets.
The above are general guidelines, your Spanish lawyer will be able to assist and answer any questions regarding individual cases or on how to draft a common law marriage agreement.