When there is a matrimonial regime with separation of assets, it means that each spouse retains ownership and administration of their assets, both those acquired before the marriage and those acquired during it. In this way, each spouse is the owner of her personal property and can dispose of it without having to consult with the other or share it 50%.
However, although the estates remain separate, both spouses are obliged to contribute to the marital burdens (food, medical care, children's education, etc.) in proportion to their respective assets, in the absence of an agreement between them.
This regime is one of the most common in Spain and in some communities, such as Catalonia, the Valencian Community and the Balearic Islands, it is established automatically in the absence of a contrary agreement for people who have been living in the community uninterruptedly for 10 years or 2 years having expressed the intention to acquire the neighborhood in the place of residence.
When a marriage with separation of property decides to divorce, each spouse keeps their property without having to share it with the other. This will not change if we are facing a divorce of separation of property without children or with children, since it is a purely economic issue.
If there is no explicit agreement between the couple on how each will contribute to family responsibilities, each spouse will contribute according to the financial resources they have. Therefore, also after the divorce, the one with a higher income will contribute more towards the costs of education, food and child support in general.
In this sense, the domestic work that has been done for the family home will be computed as a contribution to family responsibilities and, in the event of divorce, will entitle the spouse who has carried it out to obtain compensation.
Despite maintaining the assets of each one separately, this does not prevent the existence of certain common assets with this matrimonial regime, which are those acquired jointly throughout the marriage such as bank accounts, a house and/or mortgage in common or assets whose Ownership is impossible to prove.
As a general rule, the common property after a divorce with separation of property is distributed taking into account the contribution of each of the spouses at the time of acquisition.
However, in the case of family housing, even if only one of the spouses is the owner, the Civil Code requires that the consent of the non-owner spouse or, where appropriate, judicial authorization is necessary for its sale.
If after the divorce it is decided to divide the joint patrimony or award the property to the other spouse, it is best to reflect it in the Regulatory Agreement. This is so to be able to obtain tax benefits, such as saving us the Tax on Documented Legal Acts; tax that must be paid if after the divorce the former spouses decide to award or divide the estate.
On the other hand, if there is a common debt contracted during the marriage, such as a home mortgage, the spouses by mutual agreement can decide that one of the two should keep the house and take charge of this debt. Now, it must be borne in mind that in the eyes of the bank both spouses are debtors and in the event of non-compliance by one of the spouses in the payment of the mortgage installments, the creditor may demand the outstanding installments from the other.
