In Spain pension contributions or pension funds are capital. Pensions will be taken into account as assets in the liquidation of the matrimonial property regime, not on divorce proceedings.

In the jurisdictions of England and Wales, Canada, USA, Germany, France Switzerland, etc. in case of a divorce the splitting of the pension income accrued throughout the marriage is mandatory. Not in Spain.

HOW IS A PENSION TREATED IN SPAIN?

Pensions will only be taken into account if the matrimonial property regime is joint ownership of assets.

There are three matrimonial property regimes recognised in the Spanish Civil Code: Joint ownership of assets; Separation of assets; and Participation in acquisitions. (This last regime is rather unusual in Spain).

Joint ownership of assets: the acquisitions obtained by each of the spouses during the marriage are common and divided equally when the matrimonial property is liquidated. The assets that each spouse brought into the marriage and those inherited or acquired gratuitously afterwards are considered personal property of each spouse.

•  Pension funds are personal property of the spouse who has been working and therefore his/her employer has been paying the contributions for his/her future retirement. The pension funds will not be shared in the liquidation of the matrimonial property regime. Civil Code article 1.362. Judgements of the Supreme Court of 20th December 2004 and of 27th February 2007 (Sentencias del Tribunal Supremo de 20 Diciembre 2004 y de 27 Febrero 2007).
•  Private pension funds which are paid voluntarily by the spouses during the marriage with their matrimonial incomes are considered matrimonial property and must be equally splitted up on the liquidation of the joint ownership of assets.
•  Early legal retirement funds. The amounts that an employee eligible for early retirement receives during the marriage are considered his/her personal property. Civil Code article 1.346, 3º – 5º. Judgement of the Supreme Court of 22nd of December 1.999. The proceeds from the early legal retirement funds during the marriage are matrimonial assets and must be equally shared on liquidation of the joint ownership of assets. Civil Code article 1.347, 2º
•  Employee´s compensation for permanent disability is his/her personal property. Civil Code article 1.346, 5º-6º. Judgement of the Supreme Court of 14th of December 2017.
•  Redundancy payment. It is matrimonial property the amount payed corresponding to the years worked during the marriage until the pay off date. Civil Code article 1.347,1º. Judgement of the Supreme Court of 28th of May 2008.

PRENUPS- POSTNUPS

The spouses can agree in a private document that a pension fund will be considered a matrimonial asset regardless of whether it is matrimonial or personal property according to the Civil Code articles. It is based on the freedom of agreements between the spouses of article 1.323 of Civil Code. Judgement of the Supreme Court of 6th June 2019.

The spouses can always choose and change their matrimonial property regime before or during their marriage. The election of the matrimonial property regime must be granted in a Deed in front of a Spanish notary public.

Spain comprises several territorial units, some of which have their own rules of law in respect of family and succession. The common point is that in all of them you can choose your matrimonial property regime in a public deed. But, in the absence of agreement, a matrimonial property regime will apply by default:
■ Civil Code: Joint ownership of assets (Régimen de gananciales).
■ Catalonia, Aragón, and the Balearic Islands: Separate ownership of assets.
■ Galicia: Joint ownership of assets.
■ Basque Country (differences between the counties): Joint ownership of assets/Universal community of assets.
■ Navarra: Matrimonial company of conquests “Sociedad conyugal de conquistas”.
■ Parts of Extremadura: Community of assets “Fuero del Baylío”.

Amparo Arbáizar
Abogada- Spanish lawyer
www.arbaizarabogados.com
amparo@arbaizar.de