In Spain, there are various forms of cohabitation. These include marriage or, on the contrary, an unregistered partnership. For those who wish to have a marriage-like relationship but do not want to enter into a marriage, there is the option of a registered civil partnership. This civil partnership is known in Spain as a "pareja de hecho" or "unión de hecho". Both marriage and registered partnerships have their own legal peculiarities that need to be taken into account.
Both forms are possible regardless of the gender of the partners. Spain already recognized same-sex marriage in 2005.
A pareja de hecho is generally a publicly registered and permanent civil partnership between two people who live together and have a committed relationship but are not married. This allows the partners to arrange things that would also be possible in a marriage. These include, for example, maintenance obligations for children or what should apply in the event of a separation. The pareja de hecho is also possible for foreign nationals in Spain, including Mallorca.
It should be noted that there is no uniform regulation for the pareja de hecho in Spanish law. Each autonomous region sets its own conditions and obligations. In Mallorca, this is regulated by Law Ley 18/2001 of December 19th. The place of residence is therefore decisive as to which regulations apply to a pareja de hecho.
Compared to marriage, similarities can be identified. In the case of joint children, for example, maintenance obligations in the event of separation are regulated similarly, including maintenance, custody and visiting rights. There is also no difference between marriage and pareja de hecho when it comes to a partner's healthcare, a rental agreement or state grants or subsidies.
However, the following significant differences should be noted.
The matrimonial property regime is determined by law at the time of marriage. The partners can choose between a matrimonial property regime comparable to community of accrued gains, separation of property or community of property. In the case of the pareja de hecho, such a matrimonial property regime cannot be chosen without further ado, as this is reserved exclusively for marriage. It is possible and advisable to have such an agreement notarized. If this is not done, each partner must provide for the couple's joint living expenses in proportion to their income.
There is also a big difference in terms of income tax. Marriage is regarded as a family unit, and this unit can also be relevant for the tax return. Spouses can therefore submit a joint tax return. This family unit is not recognized in the case of a pareja de hecho. Only in the case of joint children is it possible for one partner to form a family unit together with the children and submit a joint tax return. The other partner is not normally included in this and would have to submit a separate return.
If a spouse dies, the surviving spouse is entitled to a so-called widow's pension. In simple terms, the only requirement is that the deceased also paid into the fund. If a partner dies in a pareja de hecho, there is no such simple entitlement. The entitlement is based on the income of the surviving partner compared to the income of both partners in the calendar year prior to the death of one partner. For example, the survivor is only entitled if their income is less than half of the joint income. There are also differences if there are children. All of this must always be examined on a case-by-case basis.
In general, Spanish inheritance law only recognizes spouses in its regulations. There are no legal provisions governing inheritance in the case of a pareja de hecho at national level. However, some autonomous regions have also regulated inheritance law for unmarried couples. In any case, it is advisable to draw up a will in favor of your partner.
Finally, the dissolution of the marriage or pareja de hecho is also different. While a marriage can only be dissolved three months after the marriage, a pareja de hecho can be dissolved at any time, as there is no time limit.
Overall, this comparison shows that despite the many similarities, there are some significant differences between marriage and a registered partnership. Due to these sometimes considerable effects on the legal position of the individual partners, it is advisable to inform yourself well before deciding on the form of civil partnership and, if necessary, to seek legal advice.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
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