The apartment in Mallorca: which property law applies to it

The apartment’s location does not decide the property law

Which property law applies depends on the marriage, not on where individual assets are located. Once the applicable law is settled, it covers all of the spouses’ assets, whatever country they are in Art. 21 Regulation (EU) 2016/1103.

For the apartment in Mallorca, this means it is not a special case among your assets, just one item among others. If German property law applies, the apartment goes into the Zugewinnausgleich (equalization of accrued gains) just like a house in Bad Homburg. The law of the place where it is located governs something else: the route from the result to its implementation, meaning the division, the sale and the registration. More on that below.

When Spanish property law applies at all

Without a choice of law, Spanish property law applies above all when the spouses’ first shared habitual residence after the wedding was in Spain Art. 26 Regulation (EU) 2016/1103. A later move does not, as a rule, change this in either direction.

So two Germans who lived in Frankfurt after the wedding and bought an apartment in Port d’Andratx ten years later remain under German property law. The position is different for a couple who spent the first years of their marriage on the island, and for binational marriages without a shared residence.

The date of the wedding matters. The European Matrimonial Property Regulation determines the applicable law only for marriages entered into on or after January 29, 2019, and for choices of law made from that date on Art. 69 (3) Regulation (EU) 2016/1103. For older marriages, which account for most divorces, the conflict-of-laws rules that applied before still govern. They looked first to the spouses’ common nationality at the time of the wedding, which keeps German couples under German property law even more often. For details, see Foreign assets and accrued gains.

Spain has not one property law but several

Besides the Código Civil, the civil code that applies throughout the country, Spain has separate civil laws in individual regions, and some of them set their own property regime. Aragon, Catalonia, the Balearic Islands, Navarre and parts of the Basque Country have their own rules for this. In Galicia, however, the property regime of the Código Civil applies.

The difference is fundamental. The Código Civil makes the community of acquisitions (sociedad de gananciales) the default regime. Whatever is acquired during the marriage belongs to both spouses jointly and is divided up at the end. In Mallorca, by contrast, the default without a marital agreement is Gütertrennung (separation of property), known in Spanish as separación de bienes Art. 3 Compilación del Derecho Civil de las Illes Balears. Menorca adopts these rules, and Ibiza and Formentera reach the same result through a provision of their own Art. 65 and 67 Compilación. Each spouse keeps what is in their own name, and an increase in value is not shared. Only work for the family is compensated at the end. It counts as a contribution to the costs of the marriage, and if the spouses cannot agree, the court sets the compensation Art. 4 (1) and Art. 67 (2) Compilación.

In a long marriage, the gap between these two regimes amounts to considerable sums. So “Spanish law” on its own does not answer the question yet.

Which Spanish regional law applies to your marriage?

If the European Matrimonial Property Regulation points to Spain, it does not itself decide which Spanish regional law applies; it first refers to Spain’s internal conflict rules Art. 33 Regulation (EU) 2016/1103. Those rules look to the vecindad civil, a person’s attachment to one of Spain’s civil law territories Art. 16 Código Civil.

The vecindad civil requires Spanish nationality. Germans without a Spanish passport do not have one, not even after decades on the island. For them, according to the prevailing view, the regulation’s fallback rule applies. It looks to the territory to which the relevant connecting factor leads. If the first shared residence was in Mallorca, that means Balearic law, and with it separación de bienes.

The order of these steps matters, because the shortcut is wrong in both directions. An apartment in Mallorca never leads to Balearic property law on its own. Living in Mallorca can lead there, but only through two steps of analysis, and the second is routinely overlooked.

What separation of property means for the apartment

Under Gütertrennung (separation of property), the increase in value is not equalized, and what counts is who is registered as the owner. If you helped finance the apartment without being registered as an owner, you are left without a claim under property law for that money.

In practice, the same situation comes up almost every time. One spouse handled the purchase through their own account; the other shared the installments, renovation and running costs for years. Only one of them is on the register. In the German Zugewinnausgleich (equalization of accrued gains), the increase in value would balance this out. Under the Balearic regime, the only route left is through general claims, and it is considerably harder.

For binational and mobile couples, a choice of law is therefore the most important planning tool Art. 22 Regulation (EU) 2016/1103. It settles in advance what would otherwise depend on places of residence that lie far in the past; see Choice of law in a marital agreement for binational couples.

The most common case is still the German one

In most cases involving a vacation property in Spain, German property law applies in the end, because the couple married and lived in Germany. The apartment is then one item in the final assets, valued as of the cut-off date, and its valuation follows the same rules as for a property in Germany.

That is only half a relief. German law says who is entitled to which value. It does not say how a co-ownership share in a Spanish property changes hands, and it gives you no access to the property either. That second half is governed by Spanish law, and in our experience it takes more time than the calculation itself. Our page on international family law describes how we approach cases with a cross-border element.

How a property is valued in the equalization is explained in Property in the equalization. Our page on the equalization of accrued gains describes the framework of the calculation as a whole.

What you can gather before the first consultation

Three facts usually settle the property law question in the first consultation: the date of the wedding, your first shared home after it and your nationalities at the time of the marriage. Then there is the question of whether you ever made a marital agreement or its Spanish counterpart, capitulaciones matrimoniales.

For the apartment, add three documents: the deed of purchase (escritura), an extract from the land register (nota simple) and the current balance of any loan. You can request the nota simple online from the competent Registro de la Propiedad, the Spanish land registry. It shows who is registered with which share and what encumbrances the property carries.

If you bring these, you will not skip the first appointment, but you will spend it on the actual question rather than on tracking down documents.