Matrimonial Agreements (Capitulaciones Matrimoniales) in Spain in 2026: CC Articles 1325 to 1330 and How Prenuptial Agreements Work for Foreign Property Owners

Matrimonial agreements, known in Spain as capitulaciones matrimoniales, are the notarial deed through which spouses choose, modify or substitute their matrimonial economic regime. Codigo Civil articles 1325 to 1330, introduced by Ley 11/1981, govern the form, timing and capacity requirements. Without capitulaciones, article 1316 imposes sociedad de gananciales (community property) as the default. For a foreign property owner buying in Marbella or Estepona, the question is whether to accept that default or sign capitulaciones to elect separacion de bienes, participation, or a bespoke arrangement before a Spanish notary.

What are capitulaciones matrimoniales under Spanish law?

Capitulaciones matrimoniales are a public deed authorised by a notary in which the parties to a marriage (or a forthcoming marriage) stipulate the economic rules that will govern their relationship. Article 1325 of the Codigo Civil, as reformed by Ley 11/1981 of 13 May 1981, states that in capitulaciones the grantors may stipulate, modify or substitute the economic regime of their marriage or any other provisions by reason of it. The scope is broad: couples can select one of the statutory regimes (gananciales, separacion de bienes, participacion) or craft a hybrid, and they can also include gifts, lifestyle clauses and crisis provisions. Our guide to sociedad de gananciales explains the default community regime in depth; this page covers the mechanism for choosing or changing it.

When can you sign capitulaciones: before or after the wedding?

Article 1326 permits capitulaciones both before and after the marriage is celebrated. There is no expiry window for post-marital capitulaciones: a couple married for twenty years can switch regimes at any point. Pre-marital capitulaciones, however, carry a time limit under article 1334: if the marriage is not celebrated within one year of signing, all stipulations made in contemplation of that future union are void. The Consejo General del Notariado reported that in 2012, 52 per cent of capitulaciones were signed after the wedding and 48 per cent before, a split that held steady into 2013.

What form must capitulaciones take to be valid?

Article 1327 requires capitulaciones to be granted in escritura publica, meaning a notarial deed signed before a Spanish notary. A private written agreement, a foreign prenup signed without a Spanish notary, or an oral understanding has no effect against third parties or in the Property Registry. Article 1333 adds that every marriage inscription in the Civil Registry must mention any capitulaciones, and where they affect real estate, a note must be taken in the Registro de la Propiedad under the terms of the Ley Hipotecaria. This is why a foreign owner with Spanish property needs capitulaciones in Spanish notarial form, not just a UK or US prenup, to ensure the Land Registry reflects the chosen regime. Our Spanish property registry guide explains how the registry interacts with marital status.

What can and cannot be stipulated in capitulaciones?

Article 1325 grants wide freedom: the grantors may stipulate the regime itself and “any other provisions by reason of the marriage.” In practice, couples use capitulaciones to elect separacion de bienes (keeping all assets individual), to create a participation regime (each spouse keeps administration during the marriage but shares gains at dissolution), or to modify the default gananciales rules. The Consejo General del Notariado notes that capitulaciones can also include parental gifts to the spouses, cohabitation norms and provisions anticipating marital crisis. Article 1328 sets the boundary: any stipulation contrary to law, good customs, or limiting the equality of rights between spouses is null. This means a clause attempting to waive future forced-heirship rights or to penalise divorce would not survive challenge. Our inheritance planning guide covers how forced-heirship rules interact with estate planning regardless of the matrimonial regime.

How do you modify existing capitulaciones?

Article 1331 requires that any modification of earlier capitulaciones be made with the assistance and concurrence of the persons who participated as grantors in the original deed, if they are still living and if the modification affects rights they conferred. In practice, if parents made a gift to the couple in the original capitulaciones, they must consent to any change that touches that gift. Article 1332 requires the notary to note the modification on the original deed and on all copies issued. A couple can change regimes as many times as they wish, though the Notariado reports that more than one change is uncommon. Article 1317 protects third parties: a mid-marriage regime change does not prejudice rights already acquired by creditors or buyers.

Who has capacity to grant capitulaciones?

Article 1329 governs minors. A minor who is legally permitted to marry (emancipated minors under article 314, or those aged 14 with parental and judicial authorisation under article 48) may grant capitulaciones before or after the wedding, but needs the concurrence and consent of their parents or tutor, unless the capitulaciones solely pact the regime of separacion or participation. Article 330 extends the principle to judicially incapacitated persons, who may only grant capitulaciones with the assistance of their legal representative and, where applicable, authorisation from the family council.

Which regime do most couples choose when they sign capitulaciones?

Regime elected	Share of 2012 capitulaciones	Key feature
Separacion de bienes	89 per cent (37,657 deeds)	Each spouse owns and manages their own assets individually
Sociedad de gananciales	6 per cent (2,647 deeds)	Gains during marriage are split equally at dissolution
Other community regimes	5 per cent	Custom or regional-foral arrangements

The data comes from the Consejo General del Notariado, which recorded 42,559 capitulaciones in 2012. The overwhelming majority elected separacion de bienes, the default in Catalonia, Valencia and the Balearics under their own civil-code traditions but available to any couple in common-law Spain through capitulaciones. For a foreign buyer, separacion de bienes is often the practical choice: it keeps each spouse’s Spanish property clearly individual, simplifies the non-resident tax profile, and avoids the dual-consent requirements of gananciales for every disposal under article 1377.

Does a UK or US prenuptial agreement work for Spanish property?

A foreign prenup has no automatic effect on Spanish real estate. The mechanism that governs cross-border matrimonial property in the EU (for participating member states, which include Spain but not Denmark) is Regulation (EU) 2016/1103, in force since 29 January 2019. Article 22 lets couples choose the applicable law in an agreement, provided the chosen law is one of the parties’ national laws or the law of their habitual residence. Article 26 provides the fallback cascade where no choice is made: the law of the spouses’ first common habitual residence after marriage, then the law of their common nationality at the time of marriage, then the law of the state with which they have the closest connection. The law chosen or determined under article 26 applies to all assets under the regime regardless of where they are located (article 21). In practice, a British couple resident in Spain with a UK prenup electing English law would find that election respected under article 22, but they still need Spanish capitulaciones in escritura publica to register the regime against their Spanish property in the Land Registry. Without that registration, a buyer or lender dealing with the property relies on the Spanish default.

Should foreign buyers sign capitulaciones before purchasing Spanish property?

For most foreign couples buying in Costa del Sol, the answer is yes, and ideally before completion. Signing capitulaciones electing separacion de bienes before the property purchase ensures that the Land Registry entry from day one reflects individual ownership, avoiding a later corrective deed. Under gananciales, article 1320 requires both spouses’ consent to dispose of the family home even if it belongs to only one, and article 1377 requires dual consent for any onerous disposal of ganancial assets. If the plan is for one spouse to own the property individually, separacion de bienes through capitulaciones removes that consent layer for future sales or mortgages. The notarial cost is modest: the Consejo General del Notariado places the average at around EUR 60 for a straightforward deed without asset distribution. Our joint ownership guide covers the alternative of co-ownership between spouses, and our divorce and property guide explains how the chosen regime determines what happens to the property if the marriage ends.

What is the registration process after signing capitulaciones?

Once the notary authorises the escritura publica, two registrations follow. First, article 1333 requires the capitulaciones to be noted in the marriage inscription at the Civil Registry. Second, where the capitulaciones affect real estate, a note must be taken in the Registro de la Propiedad. In practice, the notary can handle both filings. For a couple who already own Spanish property and are switching from gananciales to separacion de bienes, the Property Registry update is essential: without it, a future buyer or lender is protected as a good-faith third party under article 34 of the Ley Hipotecaria and may rely on the registered gananciales regime. The protective effect of registration is why the additional step matters even though the capitulaciones are valid between the spouses from the moment the notary signs.