If the flat is in my name alone, do I need my partner's signature to sell it?

Question

José Manuel Alburquerque · Accepted Answer

If it is the family home, yes. In Catalonia, even if the flat is yours alone, to sell the home in which the family lives you need the consent of your spouse or your stable partner (in a “pareja estable”, the Catalan stable partnership) or, failing that, the court's authorisation. If it is not the family home, such as a second home or a flat let to others, you can sell it on your own if your marriage is under separation of property, which is the default regime when the spouses have Catalan “vecindad civil”, the regional civil-law status. If you are under the “sociedad de gananciales”, the community-property regime that is the default under the Spanish Civil Code, your spouse's signature is also needed when the flat is community property. In the deed you will have to declare whether or not the flat is the family home. The family home The Catalan Civil Code protects the home in which the family lives. Even if it belongs to only one of the spouses, that spouse cannot sell it, mortgage it or do anything that jeopardises its use without the other's consent. The same rule applies to stable partners. This protection works as follows: Consent must be given for that particular sale. A general permission given in advance is not valid, nor is an agreement excluding it. If your spouse or partner refuses or is unable to give it, you can ask the court to authorise the sale. If you sell without consent or authorisation, your spouse or partner can ask for the sale to be set aside. They have four years, counted from when they knew or could have known of it and, at the latest, from when the sale is entered in the “Registro de la Propiedad” (the Land Registry). The sale is not set aside if you declared in the deed that the flat was not the family home and the buyer bought it in good faith, even if the declaration was false. In that case, it is you who is liable to your spouse or partner. When you can sell it on your own When a marriage is governed by Catalan law, the default regime is separation of property. Each spouse sells what is theirs without asking the other's permission, except the family home. That is why you can sell on your own a second home, a flat let to others or any other flat in which the family does not live. There are two situations that change the answer: Being married under the community-property regime. The regime does not depend on where you live. It depends above all on whether you signed a marriage settlement (“capitulaciones”) and on the regional civil-law status you both had when you married, which is what determines whether Catalan civil law or the Spanish Civil Code applies to you. Under the community-property regime, the flat may belong to both of you even if it is in your name alone. If it is community property, both signatures are needed, whether or not it is the family home. Being separated or divorced where a judgment has given the use of the home to your former partner or your children. The situation is different and should be reviewed before putting the flat on the market. At the notary's office The notary will ask you whether the flat is the family home. If it is not, you will declare this in the deed, which is what allows the sale to be registered without your spouse's or partner's signature. If it is, your spouse or partner will have to give their consent before the notary, even though they are not an owner. That is why the buyer usually asks for that declaration or for the other person's signature. In the rest of Spain, the Spanish Civil Code gives the same protection to married couples' principal residence. Protection for unmarried partners depends on the law of each of Spain's autonomous communities.