What is a Spanish Prenuptial Agreement?

In Spain, a prenuptial agreement is called capitulaciones matrimoniales. It is a notarial document in which the parties to a forthcoming marriage (or an existing marriage — post-nuptial agreements are also valid in Spain) formally choose or define their matrimonial property regime. Capitulaciones must be signed before a Spanish notary to be legally valid and are registered in the Civil Registry alongside the marriage record.

Unlike in some other legal systems, Spanish capitulaciones are not limited to financial provisions — they can also regulate the choice of law governing the marriage, particularly important for international couples living on the Costa del Sol where two or more legal systems may be relevant.

Why Spanish Matrimonial Property Regimes Matter

In Spain, the default matrimonial property regime varies by region. In most of Spain, including Andalucía (which covers Mijas and the Costa del Sol), the default regime is sociedad de gananciales (community of property). Under gananciales, all assets acquired during the marriage are jointly owned and must be shared equally on divorce or death — regardless of which spouse earned the money or whose name the assets are in.

For many international couples, particularly those who already own property, have a business, or have children from a previous relationship, this default regime may be completely unsuitable. Capitulaciones allow them to opt for separación de bienes (separation of property), or a custom-designed regime.

Who Should Consider a Prenuptial Agreement in Spain?

A prenuptial agreement is particularly advisable if you:

  • Own property in Spain before marriage that you wish to remain solely yours
  • Own a business or professional practice that should not become jointly owned
  • Have children from a previous relationship whose inheritance you wish to protect
  • Have significantly different financial circumstances from your partner
  • Are of different nationalities and have assets in multiple countries
  • Have significant existing debt that you do not want your partner to inherit liability for

What Can Capitulaciones Cover?

Spanish capitulaciones can include:

  • Choice of matrimonial property regime: Electing separación de bienes (most common for international couples), or a customised version.
  • Attribution of specific assets: Declaring specific pre-marital assets (property, business interests, investments) as separate and private.
  • Choice of applicable law: Under EU Regulation 2016/1103, couples can elect the law of one spouse's habitual residence or nationality to govern the matrimonial property regime — critically important for international couples.
  • Inheritance provisions: Specific gifts or allocations to the surviving spouse in case of death (within the limits of Spanish forced heirship rules).

What capitulaciones cannot do: They cannot waive future maintenance rights on divorce (these are set by the court at the time of divorce), and they cannot override Spanish forced heirship rules (legítima) unless a choice-of-law election is made.

The Process of Making Capitulaciones in Spain

The process is straightforward:

  1. Both parties consult with a family lawyer (ideally together, with separate independent legal advice available if desired).
  2. The agreed terms are drafted as a notarial document.
  3. Both parties sign before a Spanish notary (in person or via Power of Attorney from abroad).
  4. The notary registers the capitulaciones with the Civil Registry.
  5. If property is involved, the capitulaciones may also need to be noted at the Land Registry.

Pre-marital capitulaciones can be made at any time before the wedding. Post-marital capitulaciones (modifying the existing regime) can be made during the marriage. Cost: approximately €500–€1,500 in total legal and notary fees, depending on complexity.

Frequently Asked Questions

It depends on the applicable law. Under EU Regulation 2016/1103, if you married after 29 January 2019 and are habitually resident in Spain, Spanish law may be the applicable law unless you validly elected the law of another country. A foreign prenuptial agreement will be recognised in Spain if it is valid under the law that governs your matrimonial property regime. If there is any doubt, having capitulaciones signed before a Spanish notary is the most reliable approach to ensure your arrangements are properly recognised in Spain.
Yes. Spanish law allows married couples to change their matrimonial property regime at any time during the marriage by signing new capitulaciones before a notary. Both parties must consent. The change takes effect from the date of signing and cannot retrospectively affect the rights of third parties (creditors, etc.). If you are currently married under gananciales and want to switch to separación de bienes, a liquidation of the existing community of property may need to be carried out first.
Yes, significantly. Under gananciales, a property purchased by one spouse during the marriage is jointly owned even if the other spouse is not on the title deed. Under separación de bienes, each spouse owns separately what they purchase in their own name. If you purchase Spanish property as a married person under gananciales, your spouse's consent is generally required to sell or mortgage it in the future — even if only one name is on the deed. This makes the choice of regime at the time of purchase extremely important.