34 · Separation & Divorce — Who Keeps the Mallorca Property
*When a relationship ends — often a cross-border one — the question of what happens to the shared house on the island comes up fast. Here you'll learn which matrimonial property regime applies, and why one partner taking over the property is almost always far smarter, tax-wise, than selling.*
Key: ✅ confirmed · 🟡 check the detail · 🔴 clarify case by case. Cross-references: 01 (EU law) · 08 (inheritance law) · 17 (co-ownership).
Extinción de condominio — the buy-out that barely costs any tax ✅#
If you both hold the property in fractional shares (proindiviso), there's a route that is almost always the most attractive one from a buyer's perspective: one partner takes over the entire property and pays the other a cash settlement (compensación en metálico, a monetary compensation). The clever part is how the tax authorities classify it — the treasury treats this not as a purchase, but simply as the concrete allocation of rights that already existed (especificación de derechos). In practice, this means the following for you:
- No ITP (property transfer tax) is due — and it would otherwise run at 8–13 %! Instead you pay only AJD (stamp duty, around ~1,5 % in the Balearics), and even then only on the share being taken over. The leverage here is enormous.
- No
plusvalía municipal(municipal capital-gains tax on land value), provided the property is indivisible and a cash settlement is made. In the case of divorce, the exemption is even expressly provided for (Art. 104.3 TRLRHL, "sea cual sea el régimen económico matrimonial" — whatever the matrimonial property regime). ✅ - IRPF (personal income tax): As a rule, no gain arises — provided the settlement matches the original acquisition value. 🟡 Caution (the line taken by the TS, the Supreme Court): if you instead use a higher, updated value, a taxable gain may arise for the departing partner. This is exactly the point you should have carefully worked through before signing the deed.
Which matrimonial property regime applies — gananciales or separación de bienes?#
sociedad de gananciales (community of acquisitions) | separación de bienes (separation of property) | |
|---|---|---|
| Acquired during the marriage | jointly owned | each keeps their own |
| On separation | formal liquidación (winding-up), 50/50 | only what was bought jointly (via extinción de condominio) |
✅ What's different on Mallorca: if there's no prenuptial agreement, the default statutory regime here is separación de bienes (Compilación DLeg 79/1990) — and not, as on mainland Spain, the gananciales default. In practical terms this means: on the island, the settlement often runs not through a liquidación de gananciales, but through the extinción de condominio.
International couples: under which law is it settled? (EU Reg. 2016/1103) 🟡#
For cross-border couples, the EU Matrimonial Property Regulation 2016/1103 (in force since 29.01.2019) determines which matrimonial property law governs. If the partners have made no choice of law, the applicable law usually attaches to the first shared residence after the marriage — and it then covers the entire estate, including the Mallorca property.
What you need to watch for: the idea that a Spanish property automatically falls under Spanish law is a misconception. For a couple living in Germany, the German Zugewinngemeinschaft (community of accrued gains) often applies. If you want clarity here, settle the choice of law in a prenuptial agreement.
The divorce happened abroad — and the property is on Mallorca#
- Divorce within the EU (Brussels II ter, Reg. 2019/1111, in force since 1.8.2022): it is recognised automatically in Spain via the EU certificate form; no exequatur is needed. ✅ For divorces from non-EU states, by contrast, an exequátur (recognition procedure) is required.
- 🟡 The catch: for the property to be re-registered in the Land Registry (Grundbuch), the divorce ruling alone is not enough. The allocation of property rights — in the
convenio regulador, in theliquidación, or via theextinción— must be recorded in registrable form. So make sure the property is concretely allocated already during the proceedings, ideally straight away by means of a Spanishescritura(notarial deed).
The family home, the partition action, and the joint mortgage#
convenio regulador: this divorce settlement agreement governs, among other things, the use of the family home (uso de la vivienda). Where there are minor children, the right of use falls to the parent with custody (Art. 96 CC). Important: this is not ownership — the two must be regulated separately. 🟡 Since 4/2025, depending on the circumstances, an MASC (an out-of-court conciliation attempt) may also be required as a preliminary step.- When the other party digs in: no one is forced to remain in a co-ownership — the
acción de división de la cosa común(action to divide common property, Art. 400 CC) provides the remedy. For an indivisible property, this leads to a public auction (subasta), which usually ends below market value and therefore tends to serve more as leverage. ✅ - 🔑 The mortgage trap: if one party takes over ownership, they are not automatically released from the joint mortgage — that requires the bank's consent (
subrogación/novación). If it isn't granted, the departing partner remains liable, even though they ceased to be an owner long ago. ✅
Unmarried couples and death#
pareja de hecho(registered domestic partnership): here there is no matrimonial property regime. It simply remains a matter of co-ownership by the shares in the Land Registry; it is dissolved viaextinción de condominioordivisión. The protection is considerably weaker — settle this in advance by notarial deed. 🟡- If a co-owner dies: their share passes to the heirs (→ 08). Since unmarried partners are often not legal heirs, without a will you can end up co-owning the property with the deceased's relatives.
❓ FAQ#
What tax will I face if I take over the shared home? Normally only AJD (~1,5 % in the Balearics) on the share being taken over — no ITP, and usually no plusvalía either. IRPF only becomes relevant if an updated, higher value is used.
Our Mallorca property — does German or Spanish law apply to it? Under EU Reg. 2016/1103, usually the law of the first shared residence; for a couple living in Germany, then, often German law. A choice of law provides clarity.
My ex is blocking everything — what can I do? Go via the partition action (Art. 400 CC). For an indivisible property, this can end in an auction.
Sources (selection)#
- Art. 400/404/1062 CC · Art. 96 CC · Art. 104.3 TRLRHL (plusvalía exemption) · Compilación DLeg 79/1990
- EU Reg. 2016/1103 (matrimonial property) · Reg. 2019/1111 (Brussels II ter) · TS (IRPF on extinción de condominio)