De facto separation and marital property are closely linked issues in family law, as the fact of living apart can significantly affect how assets are classified and divided.
1. De facto separation and marital property: Legal regulations and Case Law
According to Sections 1393.3 and 1394 of the Spanish Civil Code, a de facto separation does not automatically dissolve the marital property regime, but if the spouses have led separate lives for more than a year, either spouse may request its dissolution, which will only occur upon the issuance of a corresponding judicial ruling.
In its Judgment 944/2024 of July 3rd, the First Chamber of the Spanish Supreme Court reaffirms its established case law, which states that “when there is a serious and prolonged de facto separation, property that would normally be considered marital property is not included in the community, especially when it involves assets acquired with the individual work and industry of each spouse, and without contributions from the other.” However, “this doctrine, as highlighted by Judgment 226/2015 of May 6th, cannot be implemented dogmatically and absolutely, and requires an analysis of the circumstances of each case. This is logical because, in light of the provisions that establish that the community property regime persists despite a de facto separation (Sections 1393.3, 1368, and 1388 of the Spanish Civil Code), the claim by the spouse asserting rights over property they did not contribute to acquiring must only be rejected when it constitutes an abusive exercise of rights contrary to good faith (Section 7 of the Spanish Civil Code).”
2. De facto separation and marital property: Legal effects
From a practical standpoint, the legal effects of de facto separation and marital property in Spain require a careful distinction between the formal subsistence of the matrimonial economic regime and its material functioning. While the community property regime (sociedad de gananciales) may formally remain in force, Spanish Supreme Court jurisprudence recognises that, in situations of long-standing separation, the economic reality of the spouses may justify a differentiated treatment of assets acquired after the breakdown of cohabitation.
This approach is particularly relevant in cases involving international couples or cross-border elements, where one spouse may continue economic activity independently, often in a different jurisdiction. In such scenarios, the courts assess whether the acquisition of assets reflects a genuine continuation of the marital economic partnership or, conversely, an individual patrimonial effort disconnected from the marital consortium. The key legal issue is therefore not merely the existence of separation, but whether there has been a functional rupture of the economic community.
In line with the principle of good faith under Section 7 of the Spanish Civil Code, the Supreme Court has consistently emphasised that claims by one spouse over assets exclusively generated by the other after a prolonged de facto separation may be rejected where they amount to an abusive exercise of rights. This introduces a corrective mechanism that prevents unjust enrichment and aligns the legal framework with the underlying economic reality of the relationship.
However, this doctrine does not operate automatically. Courts must undertake a fact-specific analysis, taking into account factors such as the duration of the separation, the existence of economic independence, the absence of contributions (direct or indirect) from the other spouse, and the intention of the parties. This case-by-case assessment is essential to ensure that the application of the law remains consistent with both legal certainty and equitable outcomes.
For foreign clients with assets in Spain, understanding the legal implications of de facto separation and marital property is particularly important in order to properly structure ownership, avoid future disputes and determine the most appropriate timing for initiating judicial dissolution proceedings.
So, early legal advice can be crucial in preserving individual patrimonial rights and mitigating potential litigation risks.
3. Legal Assessment About Marital Property Claims in De Facto Separation
Each case must be assessed based on its specific circumstances, to determine whether the claim for community property made by a spouse in a de facto separation is ethically justifiable, or whether it constitutes an “abuse of legal rights”, this is to say, the exercise of a right in a manner that exceeds its legitimate bounds and causes harm to others.
Such abuse of legal rights would occur, for example, if one of the spouses sought to have classified as community property an asset acquired exclusively by the other with the proceeds of their sole work, proceeds that were earned during a sufficiently prolonged period of de facto separation and in the absence of any actual communication between the economies of both spouses, each of whom, in practice, manages and administers their income and obligations individually and independently.
If you are facing a de facto separation and are unsure how it may affect your marital property, it is highly advisable to count with a professional and experienced Lawyer who can review your situation and advise you on the appropriate legal steps.
Contact me for personalised legal advice.
