What Are Private Property And Common Property?
The legal community of property is the most widespread matrimonial property regime in Spain, although it should be noted that there is also the possibility of making matrimonial agreements and choosing the regime of participation or separation of assets, among others.
When the marriage does not choose a specific matrimonial regime, by default the community property is considered, but what does it consist of and how can one clearly differentiate between private property and common property? Next, we will see some considerations that the law establishes in this regard.
Differences between private property and common property
It is essential to establish and understand very clearly what are proprietary assets and what are common assets. In this sense, private assets are those that belong exclusively to one of the members of the couple. On the other hand, common goods, as the name suggests, are those that belong to both spouses.
Although in theory these two definitions are very clear, the truth is that there are certain precepts that define a property as proprietary or common, according to the time it was acquired, place and origin. This is also important to apply in inheritances.
When a couple decides to end their marriage, change their marriage regime or the death of one of the spouses occurs, it is the moment in which an inventory must be carried out to determine which are the private and common assets.
How do you define which are the private property and which are the common?
The law establishes that the moment in which the goods are acquired constitutes one of the key aspects to determine whether an asset is proprietary or not. On the other hand, the origin of said goods is also a point to take into consideration. For example, assets that one of the spouses acquires through an inheritance from their parents are considered proprietary.
As we are seeing, the moment in which the goods are acquired also determines their character. In this sense, it is taken into consideration whether said property was acquired before or after the marriage was celebrated, although there are also some variants in this regard.
This is a very clear example to understand a little better the moment of acquisition of the good. If one of the spouses acquires the family home before the marriage but makes the mortgage payment during the marriage, the value of the same is double, that is, private and common. The percentage of the dwelling that was paid before the marriage and common what was paid during the marriage is considered exclusive.
Private property according to the Civil Code
Article 1346 of the Civil Code establishes the following as private property of each of the spouses:
- Assets belonging exclusively to each of the spouses before marriage.
- Assets received by an inheritance or donation, even when these have been received after the joint venture was held.
- Those acquired at the expense or in substitution of proprietary assets.
- Assets and patrimonial rights inherent to the person and those not transferable inter vivos .
- Those acquired by right of withdrawal belonging to only one of the spouses.
The Civil Code establishes, in addition to what has been previously described, other parameters for the definition of proprietary type assets. Hence the importance of having the timely advice of a lawyer to prepare an inventory according to what the law dictates.
Common goods according to the Civil Code
The Civil Code, specifically in article 1347, also defines what are those assets that are considered common or community property. Again, it is important to have the advice of an attorney.
- Those obtained by the work or industry of either spouse.
- Fruits, income or interest produced by both private and community assets.
- Those acquired for consideration at the expense of the common wealth, either the acquisition is made for the community, or for a single spouse.
- Acquired by the right of withdrawal of a community nature, even if they were with private funds, in which case the company will be the debtor of the spouse for the value paid.
- Companies and establishments founded during the life of the company by either one of the spouses at the expense of common property. If private capital and common capital concur to the formation of the company or establishment, the provisions of article 1,354 shall apply.
The definition of which are the private and common property is very important for the good coexistence of a couple, and even more so when a problem occurs, be it divorce or death. Therefore, it is advisable to seek advice before getting married and determine which is the economic regime that best suits the needs of the couple.
