If the partners are married in community of property, the property will automatically fall into the community of property between the partners.
It is possible for one of the partners to sign at the notary’s office to purchase a property in the absence of the other partner. Due to the fact that the property is then part of the community of property, the other partner automatically becomes co-owner. This may come in handy if only one of the partners can come to Spain or has a NIE number. When selling, however, both partners have to sign.
If there is a marriage settlement, it may be that both partners buy the property (each a part) or that one of the partners buys the property. The purchased property then does not fall into a community of property, but is private property.
If one partner buys the property, only this partner needs to sign for the purchase and sale at the notary. However, if it concerns the permanent family home, then both partners do have to sign for the sale at the notary.
When both partners buy the property, in most cases this will be a 50/50 split, both partners have to sign the purchase deed at the notary. They will then both become owners for a certain share of the property, which is private property. Here, however, the rule applies that a partner cannot simply sell his/her share to a third party without the consent of the other owner/partner.
In case of marriage settlements, this must be proven at the time of purchase when the notarial deed is signed. One way to do this is to provide a copy of the marriage settlement, with apostille and a certified translation into Spanish.
However, translation comes with two risks. A translation may not correctly reflect the essence of the (legal) text, but it may also be misinterpreted by the notary and the Property Register. This is because the Spanish notary and the Spanish Property Register have no knowledge of Dutch law. For this reason, we always recommend providing a Spanish-language certificate in which the Dutch notary declares, based on the relevant marriage settlements and Dutch law, that the house to be purchased in Spain will not fall within any community of property. We can provide this certificate.
Please note that as of 1 January 2018, the ´limited matrimonial community of property´ has become the legal standard in the Netherlands. Here, the assets that the partners had before the marriage remain private property and do not end up in the community property. The assets a partner gets after marriage belong to both partners together. This is why Spanish notaries often ask about the date of marriage.
It is therefore important to look at the marital status when buying and to include it when signing the purchase deed. But also when selling, it should be checked whether the property is in the seller’s community of property or whether it is private property.
Ilonka Dekker & Liselotte Houben