Q&A TRUSTS IN THE SPANISH JURISDICTION
RECOGNITION
1. Do the courts in Spain recognise the concept of a Trust?
There is not the legal concept of a Trust in the Spanish jurisdiction.
But there are different civil law contracts which can be selected on a case-by-
case basis to obtain a similar purpose as with a Trust: donations, agency,
company, mortgage, foundation, mandate, etc.(I will name some others at the
end of this document).
A foreign Trust can be recognized by the Spanish Court subject to strong
evidence of Foreign Law so that the Spanish Judge can understand the content,
legal nature, instrumentality, purpose, etc. of the Trust in this specific case.
The Spanish Judge will be able then to find the similarity of this specific Trust
with a Spanish civil law contract and apply to the Trust the law of this contract.
2. Has Spain ratified The Hague Convention on the Law Applicable to
Trusts and on Their Recognition?
No, Spain has not.
There is not any likelihood that it will be ratified.
3. Does Spain recognise or use or otherwise have to deal with Trusts in the
Matrimonial/Family context, including but not limited to:
a. Nuptial settlements;
b. Pre-Nuptial / Post-Nuptial Agreements;
c. A Special Needs Trust eg for a child of the family;
d. Testamentary Trusts;
and if so in what way?
No, Spain does not use Trusts.
In the Spanish Law of Succession, the “sustitución fideocomisaria” is similar
to a trustee as outlined in article 781 of the Spanish Civil Code and article
426 of the Catalonian Civil Code. Law 293 of the Navarra New Regional
Code contains the rules of the “fiducia continuada” which is quite similar to
the trust.
Spanish Law 41/2003, of 18th November, rules the protected properties for the
disabled similar to a Trust.
TRUSTS IN FINANCIAL CLAIMS
4. Are interests held in trust usually taken into account in financial claims in
proceedings for divorce or for other termination of a relationship
(“financial claims”) in Spain and if so, in what way?
Yes, it will be taken into account for the liquidation of the matrimonial
property regime of joint ownership of assets.
Also to estimate the amount of the maintenance obligations.
5. Does it make a difference where a spouse or a cohabitee is the settlor
and/or the protector and/or the trustee and/or a beneficiary and/or a
former beneficiary of the trust; and if so, in what way?
Yes, to clarify to which spouse the divorce produces an adverse economic
imbalance.
Cohabitees are not always recognized the same rights as the spouses in Spain.
6. Does the nature of the Trust make a difference?
In financial claims for the Family Judge the main aim will be to determine:
1. In the liquidation of the joint ownership of assets if the Trust assets are
matrimonial property and must be split equally between the spouses or if
the Trust assets are personal property of one of the spouses.
2. The amount of the property held in the Trust, to be able to estimate which
spouse must be compensated and the amount of the spouse and children
maintenance obligations.
7.In respect of a financial claim in Spain, what is the approach of the court
to:
a. Requests for disclosure of trust documentation and trust accounts
in respect of a trust set up within your jurisdiction?
Trust cannot be set up in the Spanish jurisdiction. The Spanish Courts
request account information to the Spanish Tax Revenue, Register of
Companies, Spanish Banks, etc.
b.Requests for disclosure of trust documentation and trust accounts
in respect of a trust sited offshore?
If instructed by any party the Spanish Judge will request
disclosure of trust documentation and trust accounts in respect of
a trust sited offshore, using the Spanish Law 29/2015 of Judicial
international cooperation, European Regulation 1206/2001 in the taking of evidence
and EU Regulation nº 655/2014 to facilitate cross-border debt recovery
and other international conventions.
8. Does your matrimonial/family law provide for the court in Spain to have
power to make orders in respect of property held in a trust sited offshore?
Yes, in the liquidation of matrimonial property regime of joint ownerships of
assets or in the inheritance proceedings, the Spanish Court must produce an
inventory of all the assets and afterwards distribute each asset between the
parties. The Court Order must include also the property held in a trust sited
offshore.
(Another issue is if this court order can afterwards be enforced abroad).
9. Does your matrimonial/family law provide for the court in your
jurisdiction to have power to vary trusts or other trust like entities and/or
to join trustees and make orders directed to the trustee
a. of a trust within your jurisdiction; or
b. of a trust sited offshore,
so as to require trustees to pay money or make other distribution to one of the
spouses?
Trust is not a legal concept in the Spanish jurisdiction, it will be difficult for a
Family Judge to deal with this matter and render the appropriate court order.
10. Does your jurisdiction have:
a. Laws to protect trusts based in your jurisdiction from foreign
divorce court orders and if so how is protection offered; and/or
b. Laws that enable recognition and enforcement of foreign divorce
court orders in relation to trusts based in your jurisdiction and if
so, in what circumstances are such orders recognised and enforced;
and if so please outline the same?
We do not have such laws.
11. In your jurisdiction, if a spouse varies or causes someone else to vary the
terms of a trust deed and that has the effect of defeating a Family law
claim by the other spouse (eg: changing the trustee; excluding
beneficiaries etc) , does your court have power to set aside the instrument
or disposition in question?
Yes, the instrument will be declared void and the defeated party will obtain
full compensation.
SPANISH CIVIL LAW CONTRACTS SIMILAR TO TRUST
.- Trust for disabled: Ley 41/2003, de 18 de noviembre, de protección del patrimonio
de personas con discapacidad.
.-Charitable trust: Fundación, Ley 50/2002, de 26 diciembre, de Fundaciones.
.- Trust “mortis causa”: Testamento con sustitución fideocomisaria (art. 780 Código
Civil).
.- Security Trust: aval bancario
.- Pensión trust: Fondos de pensiones, Ley 8 de Junio 1987.
.- Unit trusts, mutual trust, real-estate investment trust: Fondos de inversión, Ley
35/2003, de 4 de noviembre de Instituciones de Inversión Colectiva.
.- Anstalt: Corporación (artículo 35 Código Civil).
Amparo Arbáizar
Spanish Lawyer
International Family Law and Law of Succession