In Spain there is an increasing number of common-law marriages between Spanish and foreign nationals.
Common-law marriages are voluntary and are not subject to any time limit or conditions.
Can I obtain residency as a common-law partner?
Yes, when one of the partners is a non-EU national, you can apply for the residence card as a family member of a EU citizen.
On what grounds will it be equal to a marriage?
- In the regulation of the public service, in terms of leave, permits, administrative situations, the provision of jobs and family assistance.
- In the rights and obligations of public law established by the Generalitat on matters within its competence, such as budgetary rules, compensation, subsidies and regional taxes.
- In the rights to receive widow’s and widower’s pensions, as well as compensation for accidents at work or occupational diseases.
What are the tax benefits for common-law marriages?
When formalising a common-law marriage, or if it has already been formed, it is advisable to analyse the possible tax benefits, especially in terms of inheritance and donations tax.
Inheritance and donations tax is a government tax that is fully transferred to the autonomous communities, which means that they are responsible for the respective management and collection, and they are attributed a regulatory capacity, allowing them to establish tax rates or the application of reductions or allowances.
Having said that, it’s important to know that at a state level in the civil code, if one of you passes away, the other is not granted the inheritance rights, as there is no marriage. However, at an autonomous community level, there are communities which consider the common-law marriage as equal, others recognise only certain rights and some don’t have any regulations at all in this regard.
At Pellicer & Heredia we are going to focus on the Valencian Community, where for the purposes of this tax, a common-law marriage is treated equal to a marriage, as long as the couple meets the formal requirements to apply the deductions for degree of kinship (group II) and/or 95% for main residence with the limits of 100,000 euros and 150,000 euros respectively, both for inheritances and donations.
In addition, in the case of inheritance, you may also apply a 50% rebate of the tax liability.
What are the requirements to apply for a common-law marriage?
- At least one of you must be registered in the Valencian Community.
- To be of legal age or a emancipated minor.
- You are not married.
- You do not have an existing common-law marriage with another person.
- You are not related by blood or adoption in a direct line.
- You are not related by collateral kinship by blood or adoption within the third degree of kinship.
What documents do we require for a common-law marriage?
- Written application (standard form), addressed to the Administrative Registry of Common-Law Partnerships of the Valencian Community.
- Passports.
- If applicable, accreditation of emancipation.
- Certificate from the municipal census certifying that at least one you is a resident of a municipality in the Valencian Community, the certificate must have been issued within three months the day of application.
- In the event of incapacity of one of the partners, the judgment of incapacity that considers him/her to have the capacity to form a common-law marriage.
- Certificate or attestation of civil status of both, issued by the Civil Registry or where appropriate, by the competent body of the country of origin, duly legalised in accordance with international standards. If the document is not written in one of the official languages of the Valencian Community, it must be presented together with its official translation into Spanish or Valencian. This certificate must be less than six months old on the day of application.
- If one or both of you are divorced, a document of proof is necessary.
- If applicable, a public document (for example, a notarial document) that contains the declaration of will of the members of the union that accredits the existence of a formalised common law marriage, as long as it meets the requirements established by Law 5/2012, of 15 October, of the Generalitat (Autonomous Government). This notarial document replaces the personal appearance at the Registry of Common Law Partnerships, and the interested parties must provide the rest of the required documents, unless these are provided as part of the notarial protocol itself.
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