Breakups, assets, and forums: Madrid (Civil Code) vs. Barcelona (CCCat), succession, prenups, ADR, non-return, and surrogacy
Practical guide for international families seeking to settle in Spain. These Hot Topics synthesize some of the consequences that most affect the financial aspects of divorce or separation of an unmarried couple, depending on whether you choose to live in a city within an autonomous community with its own family law (Barcelona, Palma de Mallorca) or one governed by the common civil law (Madrid, Málaga, Valencia): (1) financial effects of divorce or of breaking up in nonregistered domestic partnerships; (2) succession without professio iuris; (3) prenups or postnups; (4) the obligation to attempt an ADR mechanism before filing suit throughout the territory and the exceptions to ADR; (5) the child’s right to be heard, international child abduction and relocation (mature minor vs. grave risk); and (6) the Instruction of the DirectorateGeneral for Legal Certainty and Public Faith and the nonregistration in Spanish Consulates of adoption judgments for babies born through surrogacy.
1) Where the couple or marriage resides does matter: Madrid (Civil Code) vs. Barcelona (Catalonia’s Civil Code)
Spain does not have a single civil law: alongside the common civil law, six regional civil law systems coexist. Five of them have their own matrimonial property regime, hereinafter MPR (Aragón, Catalonia, Navarre, the Basque Country and the Balearic Islands); Galicia does not establish a distinct regime and applies community property as a default. Practical consequence: the place of residence conditions the financial effects of a breakup or divorce. In Madrid (common civil law), absent marital agreements, the MPR is community property; in Barcelona (Catalonia), it is separation of property. All subject, in any case, to any prenups or postnups executed under Regulation (EU) 2016/1103.
A) Unregistered domestic partnership — Madrid
In Madrid, without registration in the Registry of Domestic Partnerships (RUHE), the autonomouslaw financial effects upon breakup of the unregistered partnership do not arise. The unregistered domestic partnership does not legally exist as such before the Administration and, consequently, separation of estates prevails. This means each cohabitant retains title to and management of their own assets and any jointly owned assets are governed by coownership rules. Upon breakup, since there is no specific applicable regime, protection must be articulated through contractual avenues—if there were cohabitation agreements or contracts—or, failing that, through restitutionary actions under common law: unjust enrichment, partition of coowned property. Nor is there a “marital” compensatory pension merely by virtue of being an unregistered couple. Therefore, any financial rebalancing will require support in agreements or the aforementioned restitutionary actions.
Following the amendment of Law 11/2001 of December 19 on RUHE by Law 11/2022 of December 21 (effective March 23, 2023), to register a union in the RUHE applicants must submit a joint census registration certificate at the same address for the 12 months immediately prior to the application date and have their residence in Madrid. Registration thus retains a constitutive nature of public recognition of the union and conditions access to the autonomousregion effects linked to that status.
In matters of succession, if there is no marriage or registration and no will has been made, no specific inheritance rights are recognized in favor of the cohabitant. Likewise, certain tax benefits or allowances are neither presumed nor automatically equated with marriage.
In practice, it is advisable to bolster registration with notarial documentation: cohabitation contracts regulating expenses, contributions, and title; durable powers of attorney; and steady documentary hygiene that leaves a paper trail of contributions and decisions.
Tactics upon a breakup:
Compile a complete evidentiary inventory: proof of mortgage or rent payments, improvements, transfers, joint investments, and proof of cohabitation.
Provide an economic expert report to quantify contributions, capital gains, and imbalances during the relationship and to identify assets and liabilities to be liquidated.
It is advisable to negotiate a liquidation agreement and elevate it to a public deed reflecting termination of coownership, compensating imbalances, setting exit clauses, and allocating assets and liabilities.
Accordingly, in Madrid, registration is the key to triggering the effects specific to a domestic partnership. Without registration, the dispute will not be resolved with “couple” tools, but with common law on obligations and property.
Prevention—i.e., registration when recognition is sought—together with powers of attorney and a will, reduces uncertainty, avoids costly litigation, and effectively protects the shared life project.
B) Unregistered domestic partnership — Barcelona (Catalonia)
Unlike common civil law, in Catalonia a “stable cohabiting couple” arises ex lege if any of the following are met: uninterrupted cohabitation longer than two years, the existence of a common child during cohabitation, or formalization in a public deed. Registration is not required to prove its existence, although since 2015 there has been a voluntary, nonconstitutive registry that facilitates proof and opposability vis à vis third parties.
Another relevant distinction from common law is the effects that such stable unregistered couples produce without prior registration:
Economic compensation for work when one partner has worked for the household substantially more than the other or for the other without sufficient remuneration and the other has obtained a greater increase in assets (subject to the limits and rules of arts. 2325 and 2326 CCCat).
A possible temporary maintenance allowance: capped at three annual payments unless there is custody of common children.
Allocation of use of the family home pursuant to agreement or, failing that, according to legal criteria, with a general oneyear limitation period to bring the action from the termination of cohabitation.
However, the Constitutional Court has admitted for consideration questions challenging article 2341 CCCat (especially its ex lege recognition by mere cohabitation or common child) for possible violation of article 10.1 of the Spanish Constitution.
Until the Constitutional Court rules, Catalonia’s regime for unregistered stable couples remains in force and produces substantive effects similar to marriage.
C) Marriage celebrated in Madrid (expats)
In marriages with an international element, the key issue is determining the law applicable to the MPR, under the system of choiceoflaw in Regulation (EU) 2016/1103 and, subsidiarily, the classic connecting factors.
Applicable law will depend, first, on autonomy of will exercised in marital agreements; in the absence of a choice, one turns successively to the spouses’ first common habitual residence after marriage, their common nationality, and, failing both, the State with which the marriage has the closest connection.
If the designated law is the common law and there are no marital agreements, the regime will be community property. By marital agreements, separation of property or another regime allowed by the legal system may be agreed.
If the designated law is foreign, particular care should be taken regarding the material and formal validity of the agreements and their opposability to third parties and registration, where appropriate. This determination not only sets the type of marital property regime but also the rules applicable to its liquidation.
One should not presume that the Spanish Civil Code or the special or regional civil laws apply. In the presence of international elements, the pertinent conflictoflaws rules must be applied.
Regarding the form of celebration of a marriage in Spain between a Spaniard and a foreigner, article 49 of the Civil Code requires celebration in accordance with Spanish law, ruling out celebration before a foreign consular authority when one of the parties is Spanish.
Determination of the law applicable to the marital property regime will follow the above path: choice of law in valid marital agreements, and, absent an agreement, the ordered activation of connecting factors. Hence the practical significance of early planning: clear, effective marital agreements, verification of the applicable law and, when a foreign law is involved, thorough proof of its content, validity, and interpretation.
2) Successions without professio iuris for expats: Madrid vs. Barcelona
In the absence of a choiceoflaw clause in the will and where neither the last marital domicile nor, subsidiarily, the testator’s nationality has been established, the application of common law or, as the case may be, Catalan law may arise.
In crossborder estates of expats without professio iuris, the key question is not “What was the deceased’s nationality?” but “Where did the deceased have his/her habitual residence at death and in which part of that State’s territory?” This is established by Regulation (EU) No 650/2012 in articles 21 and 36.
That Regulation is pivotal for European succession law, with the exception of Denmark, Ireland, and the United Kingdom. Its aim is to remove obstacles to crossborder inheritances and to harmonize criteria on jurisdiction, applicable law, recognition, and enforcement. The general rule (lex ultimae domicilii) pivots on habitual residence assessed from a set of circumstances: duration, reasons for the stay, and the center of the deceased’s interests.
As a practical matter, dying in Madrid or in Barcelona without professio iuris is not indifferent: for a resident in Madrid, as a general rule the Civil Code (common law) applies. For a resident in Barcelona, the Catalan Civil Code (CCCat) applies.
In Madrid, the forcedheirship system remains the classic twothirds in favor of descendants: onethird of strict forced share and onethird of “betterment,” with the remaining third freely disposable. The institution of “betterment” allows intensified allocation to children or grandchildren within the extended forced share.
The surviving spouse is a forced heir in usufruct; if in concurrence with descendants, the usufruct attaches to the betterment third; if in concurrence with ascendants, to onehalf; if there are neither descendants nor ascendants, to twothirds.
Moreover, that usufruct can be commuted into capital, an annuity, or fruits of assets—a technique that often facilitates partition and the surviving spouse’s financing. By contrast, an unmarried partner has no intestate rights under common law. Without a will, they do not inherit. They will only succeed if instituted as a beneficiary, respecting the forced shares of those entitled.
In Barcelona, by contrast, the Catalan forced share is a value claim amounting to 25% of the net estate. The heir satisfies it in cash or in assets at his/her choice, which offers practical flexibility unknown in common law.
Forced heirs are the descendants and, in their absence, the parents. The spouse or stable partner is not a forced heir in Catalonia. Protection of the survivor is articulated through other means:
In intestacy with descendants, the spouse or stable partner holds a universal usufruct over the estate, with a statutory commutation in favor of the survivor for onequarter in full ownership plus the usufruct of the family home, if the requirements of Book II and Book IV are met.
In the absence of descendants, the surviving spouse/partner may be called as heir ab intestato and, in any case, the widow/er’s quarter subsists as a needsbased claim.
Equal treatment between spouse and stable partner in Catalonia is decisive, but the status of partner must be proven under arts. 2341 et seq. of Book II.
The contrast, then, has a significant impact for expats without professio iuris: Madrid shields descendants with twothirds and reserves a limited usufruct for the widow/er, whereas in Barcelona the forced share represents 25% of the estate’s value, and the surviving spouse or partner initially has a usufruct over the entire estate, which can be exchanged for taking onequarter in ownership plus the usufruct of the family home.
Practical takeaways:
Habitual residence and its territorial unit determine the framework if there was no choice of law.
Estate planning must adapt to that framework. In Madrid, leveraging the betterment third and usufruct commutation. In Barcelona, anticipating the survivor’s commutation and satisfaction of the forced share in value.
In both cases, the compass remains the European Regulation which, rather than displacing, coordinates the legal systems called to intervene in international succession.
3) Foreign prenups and express submission: Regulation 2016/1103 and the LEC
In the area of foreign prenups and express forumselection clauses, it is useful to separate— then relate—two planes: the European one—Regulation (EU) 2016/1103—and the domestic procedural one—the Spanish Civil Procedure Act (LEC).
Regulation 2016/1103 sets international jurisdiction and applicable law for MPR matters. Its scope includes both mandatory and optional rules that spouses may agree, and the designated law applies universally (even if not that of an EU Member State).
Relevant here, article 7 allows an exclusive choice of court agreement, but only in favor of: (i) the courts of the Member State whose law is applicable by choice (art. 22) or by the default connections in art. 26.1(a)–(b), or (ii) the courts of the State where the marriage was celebrated.
This has two practical consequences:
The “place of signing” the prenup, by itself, is not a valid forum if it does not coincide with one of those anchors.
If the parties point to the courts of a third State while maintaining their habitual residence in the EU, they do not displace the European jurisdiction that corresponds. Any judgment from that third State will require exequatur in Spain pursuant to Law 29/2015.
However, Regulation 2016/1103 does not turn premarital agreements into a catchall; its scope is patrimonial.
Matters that are strictly divorce/separation (grounds and personal effects) are outside its scope and are referred to Rome III (Regulation 1259/2010), which prioritizes party autonomy to choose the law governing divorce among specified connections.
Failing an agreement, the default scale applies, whose first connection is the spouses’ habitual residence when the claim is filed, coordinated with Brussels II bis/ter on jurisdiction.
In parallel, the Judiciary Organic Act (LOPJ) in arts. 21 and 22quater synthesizes international jurisdiction of Spanish courts in personal and property relations between spouses—habitual residence in Spain, last common residence in Spain with one still resident, defendant’s residence in Spain, joint petition with one party resident, plaintiff’s residence for one year or for six months if Spanish, or Spanish nationality of both—when no different international forum prevails.
Once international jurisdiction (by Regulation or LOPJ) is established, the LEC distributes internal territorial jurisdiction. Here the rule is party dispositiveness. That is, art. 54 LEC provides that territorial jurisdiction rules apply only in the absence of express or tacit submission by the parties to the courts of a given district, and that submission is not permitted where the law attributes mandatory character to certain fora (those in art. 52.1(1) and (4)–(15), and other instances the law declares nondispositive).
What does this mean in practice for a prenup with a forum clause? That once international jurisdiction in Spain is anchored, the parties may indeed agree on the territorial court to hear actions on the agreement’s validity, interpretation, or patrimonial effectiveness, provided the matter is not subject to a mandatory territorial forum.
The key is to precisely characterize the nature of the claim: if it concerns the MPR (1103), territorial submission under the LEC is valid. If, by contrast, it touches personal aspects of the marital crisis, mandatory fora may apply along with the Rome III/Brussels framework.
4) Time to first instance divorce judgment and ADR: ADR IS MANDATORY IN SPAIN
Since April 3, 2025, procedural rules have been amended and now, before litigating, parties must show they have attempted an ADR—an appropriate dispute resolution method—with good faith, identity of the dispute’s object, effective communication to the other party, and sufficient transparency for the other side to evaluate the proposal.
Title II of Organic Law 1/2025 makes that attempt a condition for proceeding in all declaratory proceedings in Book II of the LEC and the special proceedings in Book IV, also applying to crossborder disputes between private parties.
In divorce—where personal and property claims coexist—ADR operates on two levels: on one hand, it can channel breakup agreements or at least narrow the issues in dispute. On the other, it is a strictly procedural tool for getting into court.
Practice is setting a clear time standard: an invitation to negotiate is sent and, if there is no response within 30 calendar days, or if up to three months of talks are exhausted without agreement, the requirement is deemed met.
The legislature also excludes criminal, insolvency, and labor proceedings; matters with a Public
Administration as a party; the protection of fundamental rights; measures under art. 158 of the Civil Code to protect minors (and their equivalent in arts. 236 et seq. of the CCCat); supports for persons with disabilities; filiation proceedings; summary protection of possession; urgent demolition of buildings in ruin; involuntary admissions of minors; or return proceedings for international child abduction; and bill of exchange proceedings.
In family matters, moreover, where an urgent order is required (for example, immediate return of a child or protective measures), parties go directly to court.
ADR has substantive effects over time, i.e., it interrupts limitation and suspends peremption from the proven attempt to notify the request to the other party. Protection lasts until the agreement is signed or talks end without agreement, and the clock resumes if the first meeting is not held, there is no response to the invitation within 30 days, or a specific proposal is not answered within the same period (with a particular 15day period in private conciliation).
If there is no agreement, the claim must be filed within the year following receipt of the request by the other party or the end date of the negotiation. And if precautionary measures were obtained during the talks, the claim must be filed with the same court within 20 days after the negotiation ends.
How is it evidenced in the complaint? The LEC, as amended by Organic Law 1/2025, requires proof of the attempt (new art. 264.1.4º LEC): mediation record, copy of the offer or invitation with proof of receipt, certification by the conciliator, notary, or independent expert, or, if it was impossible to attempt it, a responsible statement by counsel setting out the reasons for impossibility.
Omission of this requirement results in inadmissibility (art. 403.2 LEC). Courts already require correction of insufficient or defective evidence (art. 231 LEC) and, if not corrected, they close the case.
With that framework, a divorce today unfolds as follows. Preprocedural phase: the firm drafts an ADR invitation defining the subject (personal and financial measures of the breakup), attaches basic documentation, and sends it through a reliable channel.
If there is no response within 30 days or if, after up to three months of meetings, there is no comprehensive agreement, the requirement is satisfied. In joint petitions, ADR often leads to a settlement agreement that is put into a public deed or filed with the petition.
In contested cases, ADR allows parties to clarify what is and is not disputed and to document goodfaith negotiation. From there, the complaint is filed with the ADR annex (or a justified responsible statement). Realworld timelines range from 2 to 8 weeks for admission. The answer is typically due in about 20 business days. A hearing date is set, and judgment is usually issued 2 to 6 weeks afterward.
A wellprepared joint petition is resolved in 1–3 months. A contested case ranges between 10– 15 months.
There are exceptions where ADR is not required and the judicial route is direct: international child abduction (with its peremptory timelines), enforcement proceedings, and other urgencies justifying immediate measures—particularly those under art. 158 of the Civil Code. But outside those cases, the principle is clear and mandatory. Proof of ADR is indispensable.
5) Nonreturn based on the mature child’s objection (1980 Hague Convention)
The axis of every international abduction case is to restore the child’s status quo as soon as possible, with the governing instrument being the 1980 Hague Convention of October 25, interpreted today in light of the 1989 UN Convention on the Rights of the Child. Both texts place the child’s best interests at the center and, as a rule, impose immediate return when the child has been wrongfully removed to or retained outside his or her State of habitual residence.
In Spain, the procedural path is regulated in arts. 778 quater, quinquies, and sexies of the LEC. If the child is in Spanish territory, the Court of First Instance for the place where the child is located has jurisdiction, with expedited processing, the Public Prosecutor’s Office is heard, and the child is heard if he/she has sufficient judgment. The proceeding is summary and goaloriented. The court decides whether the removal or retention was wrongful and whether return is appropriate, without making final determinations on custody, which are decided before the court with jurisdiction over the merits.
European rules maintain jurisdiction over parental responsibility (parental authority, custody, access) in the courts of the habitual residence prior to the abduction. The existence of a return proceeding does not displace that forum: The State where the child is located decides urgently on whether to return or not. The State of former habitual residence decides on custody on the merits.
Even so, the 1980 Convention provides limited exceptions to return, which require rigorous proof and heightened reasoning because the system is designed to discourage a taking parent from gaining procedural advantage. The most frequently invoked is article 13(1)(b): when return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation. Before denying return on this basis, the court must explore whether measures or safeguards in the State of origin can neutralize the risk.
Another exception is article 13(1)(a): lack of actual exercise of custody rights by the requesting parent, prior consent, or subsequent acquiescence to the removal or retention. Case law requires conclusive acts. Consent must address a definitive relocation, not temporary permits or factual tolerances, and cannot be presumed from brief inaction by the leftbehind parent.
Of particular importance is the objection of a “mature” child. Article 13 allows the court not to order return if it finds that the child objects and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
In practice, litigating nonreturn based on the child’s objection requires building highquality evidence on that hearing: reliable expert reports, a persistent account, absence of coaching, and an analysis of protective alternatives that would make return viable.
Finally, determining consent requires fine delineation. The authority is not obliged to order return if it is shown that the parent “consented to” or “acquiesced in” the relocation, but that acquiescence must be clear and refer to a stable change of residence. Mere months of inactivity are not enough by themselves. A set of conclusive acts is necessary to establish a waiver of the right to demand return.
6) Surrogacy: Supreme Court Judgment 1626/2024 (December 4) and DGSJFP Instruction (Official Gazette, May 1)
Surrogacy is defined by Spain’s Bioethics Committee as the agreement under which a woman carries a child to hand the child over, after birth, to those who commissioned the pregnancy and will assume motherhood or fatherhood.
In practice, the phenomenon unfolds in altruistic variants (expenses only) and commercial variants (fee plus expenses).
In Spain, the starting framework is unequivocal: article 10 of Law 14/2006 declares any surrogacy agreement null and void and enshrines the rule that maternity is determined by birth, saving only the possible claim of paternity by the biological father through ordinary avenues. This legal basis explains the recurrent litigation when births via surrogacy carried out abroad seek to produce filiational effects in Spain.
The recent Supreme Court Judgment 1626/2024 of December 4 again closes the door to recognition in Spain of foreign judgments that, based on a surrogacy contract valid at origin (in the case, Texas), attribute filiation to the commissioning parents and order delivery of the child. The Supreme Court upholds the denial of exequatur for contravention of public policy and inconsistency with Spanish rulings, underscoring that the dignity of the gestational woman and the child—arts. 10.1 and 15 of the Constitution—prevents a contract from determining filiation.
Filiation cannot arise from a substitution contract, even if endorsed by a foreign judgment. The Court further recalls that the response consistent with the child’s best interests lies through Spanish law avenues: determination of biological paternity where appropriate, adoption if there is a de facto family unit, or, as the case may be, foster care—avoiding “giving an appearance of legality” to practices of commercialization.
Tied to this case law is the Instruction of April 28, 2025 from the DirectorateGeneral for Legal Certainty and Public Faith (published in the Official State Gazette on May 1), which tightens registry practice. It expressly repeals the 2010 and 2019 Instructions and provides that, under no circumstances, will a foreign registry certificate, a mere declaration with a medical certificate, or a final foreign judgment be accepted as title for registration of the birth and filiation of children born through surrogacy, whether in Spanish Civil Registers or consular offices.
Applications pending as of its publication date will not be processed. The DGSJFP sets the proper route: obtain travel documentation so that the child can come to Spain and, once here, establish filiation through the ordinary channels of Spanish law—claim of biological paternity and, where appropriate, subsequent adoption when a family unit with safeguards is evidenced.