There is a large community of British same sex couples on the Spanish Costas, many of whom have been encouraged to move here after the Spanish Government appeared to recognize British same-sex Civil Partnerships in a “Nota Verbale” issued by the Spanish Ministry of Foreign Affairs on 16th November 2007. Our office is now seeing an increasing number of British same-sex couples who find that their British Civil Partnership may be worthless in Spain when it comes to inheritance tax and welfare benefits.
Spanish marriages between persons of the same sex are recognized in Britain as equivalent to British Civil Partnerships under the Civil Partnership Act 2004 (Overseas Relationships) Order 2005 however there is considerable doubt as to whether there is in fact any reciprocal recognition by the Spanish Authorities of British Civil Partnerships.
It is not possible for people who are already British Civil Partners to (re) marry in Spain as they would need a “Certificate of No Impediment” to marry from the British Consulate. The Consulate would have to refuse to issue this certificate the ground that they were British Civil Partners. For the same reason, it is also not possible to obtain a Certificate of Civil Status to the effect that they are single and free to marry.
Most Spanish autonomous communities allow unmarried couples to register their relationship as a “Union de Hecho”, or common –law union, but this option is not possible for British Civil Partners as one of the conditions for registration is that must be single and not in any other kind of registered relationship!
The law regulating registration of a “Union de Hecho” in the Comunidad Valenciana is contained in Ley 1/2001 of 6 April 2001of the Generalitat Valenciana, and the procedure for registration is laid down in Decreto 61/2002 of 23rd April 2002 of the Gobierno Valenciano.
Article 14 paragraph 1 c. of Decreto 61/2002 states that one of the requirements for registration of a “Union de Hecho” is a Certificate of Civil Status. This would have to be obtained from the Consulate and would state that the applicant was in a British Civil Partnership, which would be a bar to registration of a “Union de Hecho”.
This failure of the Spanish Authoritites to recognize British Civil Partnerships can have dire consequences for Civil Partners who are or become resident in the Comunidad Valenciana.
For example, a married couple, or couple in a “Union de Hecho”, resident in the Comunidad have a generous exemption from Spanish Inheritance Tax, but this would not be available to British Civil Partners, despite the reported terms of the Nota Verbale of 2007.
In the event of the death of one resident Civil Partner, the direct financial consequences could be disastrous for the surviving Civil Partner they would be regarded as unmarried and the survivor would be treated as an unrelated stranger and subject to the highest rates of Inheritance Tax.
This state of affairs is highly unsatisfactory, and is leading to a feeling of betrayal of the interests of many British Citizens by both the British and Spanish governments and our office has written to the British Consulate for urgent clarification of the situation.
There is no suggestion that either the British or Spanish Government is homophobic, but that this is an example of a situation where the differences between the legislation of the two countries needs to be reconciled.
To a limited extent the effects of this unsatisfactory state of affairs can be reduced by proper Inheritance Tax Planning, and through the use of Wills and other devices which are available under Spanish law.
If you, or a member of your family, are affected by this situation please contact, Michael Olmer, Chris Spence, or Ana Gay at our office for help.
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