Divorce and property abroad: who owns what

When a couple divorces, the question "who owns the flat in Spain?" is rarely answered by the name on the title deed alone. The answer usually comes from the couple's matrimonial property regime, and for couples living in the EU that regime is often decided under a single EU rulebook. This article explains the logic in plain terms. It is general information, not a substitute for a lawyer in the country where the property stands.

Two questions that are easy to mix up

First: who is the registered owner? That is a matter of the local land register, and the register shows what was signed at purchase. Second: who is the owner as between the spouses? That is a matter of the matrimonial property regime. The two can differ. A flat registered only in the husband's name may still be shared property in the eyes of the divorce court, and a jointly registered flat may still be treated unequally if the spouses agreed otherwise or paid in unequal shares.

Community or separate property

Legal systems tend to follow one of two models.

• Community of property. What either spouse acquires during the marriage is shared, usually in equal parts, whoever paid. Some systems limit the community to property acquired after the wedding, others to certain categories.
• Separate property. Each spouse keeps what is theirs and manages it alone. On divorce there may be a compensation claim, but there is no automatic half-and-half split.

Many countries offer a default regime and let spouses change it by a notarial marriage contract. Which one is the default for your marriage is exactly what the EU rules decide.

Regulation 2016/1103 in short

Council Regulation (EU) 2016/1103 covers jurisdiction, applicable law and enforcement in matrimonial property matters. It was adopted through enhanced cooperation by 18 states, among them Spain, France, Italy, Portugal, Germany, Greece, Cyprus, Bulgaria, Austria, Czechia and the Netherlands, and applies from 29 January 2019. Poland, the Baltic states, Slovakia, Hungary, Romania, Denmark and Ireland are not among them, which matters if you live in one of those countries.

The main points:

• One law for all assets. The law applicable to the regime covers all the spouses' property, wherever it is.
• Choice of law. Spouses can choose the law of a country where either of them is habitually resident, or the law of a country of which either of them is a national, by a written, dated and signed agreement.
• Without a choice, the law of the spouses' first common habitual residence after the wedding applies. Failing that, their common nationality, and failing that, the country with which they are most closely connected. A court may exceptionally apply another law if the spouses relied on it for a significantly longer period.
• Universal application. The designated law applies even if it is the law of a non-participating or non-EU country.
• Time limit. The applicable-law rules apply to marriages concluded, or law chosen, after 29 January 2019. For earlier marriages national conflict rules apply.

The exact conditions are in the text of the Regulation, see EUR-Lex and the national fact sheets on the European e-Justice portal.

Bought before or after the marriage

This is where the regime bites. Under a community-type law, property owned before the wedding usually stays with its owner, while property bought during the marriage is shared. Under separate property, almost everything stays with whoever bought it. Mixed cases are common: a flat bought before the wedding but paid off from joint earnings, or renovated with joint money, can create a compensation claim even where the flat itself stays separate. Keep payment records.

Registered in one spouse's name

Registration in one name does not by itself rule out the other spouse's claim. Two practical points:

• In some countries the notary at purchase asks which matrimonial regime applies and records it in the deed. If the couple cannot prove their regime, the notary may fall back on the local default. In Spain, for example, local law firms report that this can create a regime you did not intend, so bring your marriage certificate and any marriage contract. Check the current practice with a local notary.
• A buyer who is married often needs the spouse's consent to sell or mortgage the home, especially if it is the family home. Rules differ by country.

How a divorce is handled across borders

Jurisdiction under the Regulation often follows the divorce: the court dealing with the divorce can also handle the property regime if the spouses agree, in certain cases. Otherwise the court is usually where the spouses are habitually resident, with other grounds as fallback. A decision from one participating state is generally recognised in the others, and enforcement needs a declaration of enforceability or a certificate procedure, depending on the instrument.

For property outside the EU, the position is different. A court in the UAE, Thailand or Turkey is not bound by the EU Regulation. The title deed in the local register is then the starting point, and an EU court order may need to be recognised through local procedure, which can be slow and is not guaranteed. In practice the safest course is often a settlement that the local registry will accept: a sale, a transfer between spouses by notarial deed, or a buy-out.

FAQ

Does the name on the title deed decide who owns the property after a divorce? Not on its own. It decides who the register recognises, but the matrimonial property regime may give the other spouse a share or a claim.

Can we choose which law applies to our property? Within the EU Regulation, yes, by a written agreement choosing the law of a country of residence or nationality of either spouse. Get advice before signing, because the choice affects all your assets.

Do the rules apply to a marriage from before 2019? The applicable-law rules apply to marriages concluded after 29 January 2019 or to law chosen after that date. Earlier marriages are governed by national conflict rules, which differ by country.

Is a court order from my home country valid for a flat abroad? Within participating EU states usually yes, with a formal recognition step. Outside the EU, local procedure decides and the result is not guaranteed.

Does an unmarried couple fall under the same rules? No. Unmarried partners are not spouses; registered partnerships are covered by a separate Regulation (EU) 2016/1104, and cohabitation is mostly a matter of local law. See our article on buying as a couple.

How we help

D.H. Realting is a trilingual platform that finds properties abroad and coordinates independent local lawyers and tax advisers. We do not decide family-law questions ourselves: we help you to find a local notary or lawyer who knows how the regime of foreign spouses is recorded. See also the total cost of ownership and our country guides. This text is informational and is not legal, tax or investment advice. Rules change, so verify the current position with a qualified professional.