It will not matter if you are married or not with your partner, since in both cases you will be acquiring an asset in common and you will not have more or less advantages if we are married or not, since this acquisition will be governed by the same regulations. From the civil and even fiscal point of view there are no variations since the deduction for the acquisition of the habitual residence disappeared, which "favored" married couples over unmarried couples (since this deduction for the acquisition of the habitual residence was abolished for acquisitions after January 1, 2013).
However, before buying a house, we must take into account that the benefits of buying a house as a couple can end up becoming disadvantages.
By way of introduction, it is important to know that, from a legal point of view, when signing a mortgage in community of property regime, 50% of the loan and of the property are awarded to each of the parties.
But on the other hand, the main risks when buying a home as a couple and without being married are the lack of legal protection; if no rules have been previously agreed upon -and have been notarized- and the complications involved in the subsequent distribution of debts or assets.
If we want to buy an apartment as a couple, it is advisable to do it when the relationship is established and, for legal reasons, has been formalized. That is, when you have married or have become a common-law couple. It is necessary to bear in mind that the banks will be more favorable to lend money to a consolidated couple.
When we buy an apartment as a couple without being married, but establishing a community of property regime, it will give rise to a situation of joint ownership or community of property, a figure of Civil Law used to regulate the rights of co-ownership.
This community of property is based on the existence of a common and proindivisa ownership of property or even of rights belonging to different owners jointly and simultaneously. In the case of real estate, its acquisition is generally formalized by means of a public deed, in which the parties record in writing their agreements in reference to that property (such as the percentage that each one acquires).
marriages contracted under the community property regime differentiate between the separate property of each spouse (property owned by each spouse before marriage and property received by inheritance or gift during the marriage) and the community property (consisting of the earnings of the spouses during their marriage, including the profits produced by both the community property and the separate property). In the case of debts generated during the union, the separate property of each spouse also acts as guarantor.
This means that, if you are an unmarried couple and you buy a house in community property regime, the property will belong to both of you in equal parts independently of the amount contributed by each one. So, even if one of the spouses earns more than the other, the property will be community property or, in other words, it will belong to both of you in the same proportion.
What can happen is that one of the spouses contributes money privative, that is to say, only of him (for example, coming from the inheritance of his parents) for the acquisition of the family house, in which case it is very advisable to state it in the deed of purchase so that this spouse has a greater participation in the property of the house.
This is stipulated in the May 27, 2019 ruling of the Supreme Court, which states that "if it is proven that for the acquisition -of the property- privative funds have been used, the spouse who owns the money is entitled to be reimbursed the updated amount, even if he or she did not make a reservation about the origin of the money or about his or her right to reimbursement".
In marriages with a separation of property regime, the assets of each of the spouses are kept separate. Thus, the assets belonging to each of the persons before and after the marriage will remain theirs. This means that, if you buy a house as a couple in regime of separation of property, each of you will be the owner of the proportional part that you have paid (even though both of you enjoy it). If the purchase has been made only with the money of one of the spouses, it will be exclusively yours.
The marriage contracts are a document in which the couple agrees on the economic conditions that will govern their marriage. They are equivalent to the document that is signed in the case of buying a house as a couple without being married. Thus, in the case that one of the contracting parties is in debt or one contributes more capital, everything will be gathered in these capitulations and it will not suppose damage or benefit to the other part.
What is the recommended legal form for buying a home as an unmarried or married couple?
It doesn't really matter if you are married or not with your partner, since in both cases we will be acquiring a property in common, and that acquisition will be governed by the same regulations". From the civil and even fiscal point of view, there are no variations since the deduction for the acquisition of a habitual residence, which rewarded married couples as opposed to unmarried couples, disappeared.
What happens to the house in case of divorce
In the event that the relationship does not end well, several possibilities open up. In the first place, it is necessary to differentiate between the ownership of the house and the right of use, since both do not have to coincide in the same person. The right of use will be decided by the spouses or by the judge in his sentence depending on whether there are minor children or a spouse deserving of greater protection. But it is also possible that the ownership of the house is attributed to one of the spouses, regardless of who has attributed its use.
housing as an unmarried or married couple
As you can see, buying a house if you are an unmarried couple is not difficult, but the situation becomes more complicated if the children arrive because in a separation or divorce the interest and protection of the minors takes precedence. The key is to collect the agreements in a public deed that establishes the conditions in the case of a separation or divorce.