What does exactly pareja de hecho mean in Spanish law?
It would be similar to the common law marriage. A union between two people, regardless of their sex, who want to live together in a committed and durable relationship and who are not united by marriage.
How are the unmarried couples regulated in Spain?
There is no national law to regulate the unmarried couples, nor they are mentioned in the Constitution or the Civil Code. There is some legislation on social security, leasing law, tax law, etc, that incidentally deals with the issue but not a comprehensive law governing this kind of family model.
At the regional level, however, specific rules have already been adopted. Twelve of the seventeen autonomous communities (regional governments) that exist in Spain have a law on unmarried couples and three more have regulated by decree the operation of the public register for this kind of couples. Only Murcia and La Rioja lack legislation on this subject.
What evidences are acceptable to prove that such a relationship exists?
- To be registered as a “pareja de hecho” in the relevant register for unmarried couples.
- To be registered with the same domicile at their municipality.
- To have children in common.
- To be named as a beneficiary of the insured in the Spanish National Healthcare System.
- Statements made before a notary public or private contracts between the parties to prove that the relationship exists and to regulate its economic aspects. Since the financial marriage rules are not automatically applied to unmarried couples, these documents are highly recommended.
- Opening contracts for bank current accounts or joint deposit accounts that denote the existence of a joint use of assets.
- Contracts with third parties that can prove the existence of a life in common.
- Witnesses
These evidences are relevant wherever necessary to prove in court that the relationship exists or existed in the past. For example, if the partnership ended and the two people are arguing about the allocation of their assets and rights, right of use, provision of compensatory maintenance, pensions for widows, allowances, etc. Nevertheless, in relation to tax liabilities and fiscal benefits, relevant to us here, marriage and unmarried couple shall be considered as equal only where the unmarried couple is recorded in the register provided for that purpose. So it appears, for example, in Articles 6 and 20 of the Law 5/2002 of 16th December, of the autonomous community of Andalusia.
What documentation do we have to produce and what are the requirements to get recorded as an unmarried couple?
In the case of Andalusia:
1.- Copy of the applicants’ identification documents (identity card, passport or residency card)
2.- Certificate of registration at census in any municipality of Andalusia of at least one member of the couple.
3.- To be of legal age or to present a certificate of emancipation issued by the Civil Registry.
4.- Certificate of civil status issued by the Civil Registry or similar body in the country of origin in case of foreigner applicants.
5.- Self declaration of not having direct line relationship (by blood or adoption) or collateral consanguinity in second grade.
6.- Self declaration of not being unable to give consent.
7.- Self declaration that the couple or any of its members is not already recorded in another register as such, or a certificate showing cancellation of registry.
8.- Self declaration of not currently being involved in a committed and stable relationship with another person.
9.- Notarial deed or private contract signed between the parties to declare that the relationship exists and to rule its economic aspects, or any other methods that may be used to prove the existence of the partnership.
Does the law recognize inheritance rights to unmarried couples?
In Spain unmarried couples have no inheritance rights automatically recognized by law, as it happens with married couples, so in these cases it is essential to grant a will to appoint the partner as heir or legatee.
What advantages does registration of the couple entail?
Basically none of the different regional laws makes unmarried couple rights analogous to those of married couple. However, depending on each region there are certain advantages, to a more or less extent, in relation to the access to funding, aid, tax exemptions, health care, pensions for widows, children adoption, inheritance taxation, leases subrogation, etc.
What is the difference in terms of inheritance taxation between being registered or not as an unmarried couple?
Article 20 of Law 5/2002 of 16th December for unmarried couples in Andalusia states that “to all tax effects and tax benefits in the Andalusian fiscal system, the coexistence of stable couples will be equal to marriage if it meets the requirements of this law”.
We can therefore conclude that partners who are registered in the Register of unmarried couples can inherit from each other (if previously stated in their wills, as mentioned) settling the inheritance tax as part of the group II (descendants and adopted, spouses, parents and adopters) and hence they will not only avoid to be penalised with group IV multipliers that make the tax amount double but they could also enjoy further reductions which are applicable to group II due to kinship, main residence, etc.
As a summary: A registered partner that inherits from the other will pay at least half of the inheritance tax that a non-registered couple would pay.
Could a non-resident couple and therefore not included in any register in Spain have access to the tax benefits of the registered “parejas de hecho”?
According to the wording of the Andalusian law, the answer is no and there would also be another inconvenience. Inheritance tax in case of non resident individuals is not paid to the Tax Office of the region in which the assets are located but directly to the Spanish Inland Revenue, i.e. applying the state law and as aforesaid there is no state law with regards to unmarried couple.
The key question is:
If two people, unmarried and non resident in Spain, are legally recorded as a couple in their country of residence, can they appeal against the extra payment of inheritance tax?
There is a number of sentences that recognize the right of non-resident individuals not to be discriminated in relation to residents in the same situation (Inheritance Tax, Capital Gain Tax, etc.) We understand that it would be possible to appeal against the tax amount (in comparison with the figure paid by a resident) but also with regard to the exclusion of group II and its benefits.
Luis M. Vicente Burgos
VICENTE & OTAOLAURRUCHI ABOGADOS
