If your relationship is in trouble, or the two of you have simply decided to go your separate ways, and you own property together, you will keep hearing the same sentence: “to end the co-ownership you have to pay stamp duty.” Most questions about divorce in Spain property come down to two things: who ends up with the house, and what it costs to put it in one name.
Stamp duty on the deed (AJD) may not worry you much. It usually runs between 0.75% and 1.5%, depending on the region, and it is charged on the half of the property that was not yours before. What almost nobody mentions is that if you are already in annulment, separation or divorce proceedings, you can in some cases register the property in your name using the convenio regulador itself. That is the divorce settlement agreement the court approves. When it works, you avoid that AJD.
Who keeps the house is something the two of you agree in the settlement. What follows is how to get that agreement into the Spanish Land Registry (Registro de la Propiedad) without a separate notary deed. The legal mechanism for ending co-ownership is called extinción de condominio, and my main guide to dissolving co-ownership in Spain covers the usual route through a notary.
Can you register the property through the divorce settlement without paying stamp duty?
Yes, in two situations. The first is when the settlement the court will approve also liquidates the matrimonial property regime. The second is when the end of the co-ownership concerns the family home.
Two more Spanish terms will help from here. Gananciales is the Spanish community of property between spouses, and a ganancial asset is one that belongs to that community. A privativo asset is one that is separately owned, for example a flat you bought with a partner before you were married.
Do you need a notary deed? The two-question test
If either answer is yes, you do not need a deed to put the property in your name.
- Is what you are dividing a ganancial asset? For example, the beach apartment you bought as newlyweds under gananciales. If yes, no notarial deed is needed. If not, go to the next question.
- Is that privativo asset your family home? For example, a flat bought 50/50 with your partner and paid for in cash before you married. If yes, the settlement is enough. If not, you need a notarial deed to register the end of the co-ownership.
The Spanish directorate that rules on Land Registry matters, then called the DGRN and now the DGSJFP, said this in its resolution of 8 May 2014:
“It is perfectly possible to include in the divorce settlement the liquidation of the family home that the former spouses hold in equal undivided shares (or another percentage) as separate property.”
“Es perfectamente posible que se incluyan en el convenio regulador la liquidación de la vivienda familiar de la que sean titulares por mitades indivisas (u otro porcentaje) y con carácter privativo los ex cónyuges”.
What must the divorce settlement say to be registrable?
The court approves the settlement in its judgment or decree. Normally it is enough to write the dissolution into the settlement, because liquidating the gananciales is typical content of a divorce. But the court must expressly approve that liquidation, or the ending of the co-ownership, in the judgment or decree. If it approves the divorce but excludes the liquidation or does not mention it, you will have to go to a notary afterwards. That is not a problem.
What goes to the Land Registry is a testimonio judicial, a certified copy of the court document. It is issued by the Letrado de la Administración de Justicia (LAJ), the court clerk who can also grant an uncontested divorce by decree. A certified copy of a court decision and the clerk’s own records are public documents. The settlement must liquidate the matrimonial property regime and be approved by the judgment of annulment, separation or divorce.
Does a divorce decree from the court clerk work for registration?
If you both agree and there are no minor children, a LAJ or a notary can divorce you. The LAJ issues a decree, not a judgment. That decree is valid for registration if you liquidate the gananciales or end the co-ownership of the family home.
What if the home is half separate and half community property?
This happens when one of you bought the home before the marriage or under separation of property, or when you bought it together in undivided shares. Then, once married under gananciales, you paid mortgage instalments with community money, and it was the family home.
For the Registry to accept the property in the settlement without a deed, the documents must show three things:
- that it was the family home;
- that it was paid for in part with ganancial money;
- that you both agree on what percentage is ganancial and what is privativo, and on how you allocate it between you.
Can unmarried couples use the divorce settlement?
No. Take a registered unmarried couple (pareja de hecho) with children, who want to slip into their custody agreement the division of three properties they own 50/50. She keeps all three and pays the other partner compensation in cash. The answer is that it cannot be registered. Court approval reaches only the measures on the children’s custody. The rest of the agreement, including the ending of the co-ownership, is outside it (DGSJFP, resolution of 9 April 2024).
Is it cheaper to do it through the court than through a notary?
Only if you are already in court. In that case, yes: you save the notary and the AJD, which runs between 0.75% and 2% of the part you newly acquire, depending on the region. For a home worth €200,000, the person who keeps a property they already owned half of would pay €1,500 at a 1.5% rate.
If one of you will pay the other to keep the home, the guide to buying out a co-owner in Spain covers the compensation and the tax. For the figures on the notary route, see the cost of dissolving co-ownership in Spain.
A nuance on liquidating gananciales before a notary
Liquidating the gananciales before a notary is exempt from AJD. You still have to file the tax return, or you can be fined €200, but you pay no tax.
Should you use the settlement to register the property?
If you are already in court, use the divorce settlement that accompanies the judgment or decree to register the liquidation of the gananciales or the end of the co-ownership. You need to be able to answer yes to one of two questions: is it a ganancial asset of the regime being liquidated, or is it our family home, even if we hold it in undivided shares as privativo? With that, you save the AJD.
I have studied thousands of co-ownership dissolutions in Spain, and I work with clients in English. If you want a second opinion on your draft settlement before it goes to the court, that is something I do.
Frequently asked questions
How much stamp duty can I save by registering through the divorce settlement?
AJD runs between 0.75% and 2% of the part you newly acquire, depending on the region. On a €200,000 home where you already owned half, a 1.5% rate would be €1,500. You also skip the notary, provided the settlement qualifies.
Do I need a notary deed to put the house in my name after a divorce in Spain?
Not if you can answer yes to one of two questions: is the asset ganancial, or is it your family home, even if you hold it as privativo? If both answers are no, you need a notarial deed to register the end of the co-ownership.
Does an uncontested divorce before the court clerk work?
Yes. If you agree and there are no minor children, a LAJ or a notary can divorce you. The LAJ issues a decree, and that decree is valid for registration if you liquidate the gananciales or end the co-ownership of the family home.
What if the court approves the divorce but not the liquidation?
Then you go to a notary afterwards. The court has to expressly approve the liquidation or the ending of the co-ownership in the judgment or decree. If it excludes it or does not mention it, a notarial deed is the way to register it.
Can a registered unmarried couple do the same thing?
No. Court approval in a custody agreement reaches only the measures on the children, so the ending of the co-ownership cannot be registered through it (DGSJFP, resolution of 9 April 2024).
If you are in the middle of a divorce in Spain and own property together, I can look at your case and tell you which route fits.