I consider that the updated doctrine of the Central board of Registries and Public Notaries may be of interest to those involved in real estate adjudication processes derived from private agreements between unmarried couples.
This Central board published a decision on 9 April 2024, in relation to a specific case in Las Palmas de Gran Canaria.
Summary of the case
In this case, a parent requested the registration of the adjudication of a property, which was established in a judicially approved agreement during a civil partnership proceeding in which, among other issues, the custody and guardianship of minor children was debated. The Land Register refused the registration, arguing that the agreement, although judicially approved, did not comply with the formal requirements necessary to be registered in the Land Registry.
The issue to be debated was that as there was no formalised marriage, the situation became a dissolution of a community of property outside any matrimonial property regime.
The decision emphasises that the judicial approval of an agreement between both parties was limited to aspects related to the custody and guardianship of the minor children. Other arrangements included in the agreement, such as the award of real estate, are subject to additional requirements, such as formalisation in a public deed.
The key aspect is as follows:
“In accordance with the principles of our legal system, the alteration of the content of the Land Registry requires that the agreement reached between the parties be properly documented (article 3 of the Mortgage Act), in order to be able to bring about the effect agreed between the parties (articles 40, 76 and 82 of the Mortgage Act). However, it is settled doctrine of this Directorate that the marital agreement may be a registrable title in those businesses that may be of a family nature, such as the liquidation of the community property, as well as – in the cases of the separation of property regime – the award of the habitual residence and other assets accessory to it, intended for the cohabitation and ordinary use of the family, and in general for the liquidation of the set of property relations that may exist between the spouses derived from their life in common. However, it is also the doctrine of this Directorate General that when it is not a regulatory agreement approved in separation, annulment and divorce proceedings (cf. Articles 769 and following of the Civil Procedure Act) but rather in proceedings for the liquidation of the matrimonial property regime (cf. Articles 806 and following of the Civil Procedure Act), the settlement agreement approved by the judge is not registrable if it is not recorded in a public deed. All the more so in the present case, in which there is no marriage subject to dissolution”.
In other words, the agreements between the parties must comply with the regulations of the land registers. A judicially approved agreement may be registrable in the land registry in those transactions that may be of a family nature, such as the liquidation of a community property or the adjudication of a property in the case of a marriage in a matrimonial property regime of separation of property.
However, the Central Board also indicates that when it is not a regulatory agreement (such as in the case of a domestic partnership), the private agreement between the parties dissolving a community of property must be converted into a public deed.
Mª Dolores García Santos