Peru Real Estate · Cross-Border Marriages

Married Abroad and Buying Property in Peru in Your Sole Name?

You may have married in the United States, the United Kingdom, Canada, Australia, Spain, Italy or another country and now wish to purchase an apartment, house or land in Peru in your sole name.

That raises an important question: because you are married, will your spouse also acquire rights over the property?

The answer does not depend only on who provides the purchase funds or whose name appears as buyer in the transaction documents. In a cross-border marriage, the applicable marital property regime must first be identified and its legal effect on the proposed acquisition in Peru must be assessed.

Will your spouse automatically become an owner of the property?

No, not automatically.

Article 2078 of the Peruvian Civil Code provides that the marital property regime and the spouses' property relations are governed by the law of their first marital domicile.

Therefore, it is not enough to ask where the marriage ceremony took place or where the spouses currently live. The first marital domicile must be identified, together with the property regime recognized by the law applicable to that marriage.

This is particularly important when the first marital domicile was in the United States because marital property rules can differ from one state to another.

What should you review before buying property in Peru?

Four issues should be reviewed before the purchase is structured.

• Your first marital domicile, to identify which country's or state's law governs the marital property regime.
• Your current marital property regime, including separation of property, community property or another regime recognized by the applicable foreign law.
• Your existing documents, such as the marriage certificate, marital agreements, prenuptial agreements, postnuptial agreements or foreign separation-of-property documents.
• The intended effect before SUNARP, to determine whether there is sufficient legal support for the acquisition to be registered as the buyer's separate property.

What if you already have a separation-of-property regime abroad?

You do not necessarily have to create a new separation-of-property regime in Peru.

The Peruvian Registry Tribunal has recognized that a separation-of-property regime validly adopted under foreign law does not, merely because it is foreign, have to be previously registered in Peru's Personal Registry before it can be considered in connection with a real estate acquisition.

There is, however, a critical requirement: the existence and legal effects of the foreign regime must be adequately established.

A document called a “separation of property agreement,” “marital agreement” or “prenuptial agreement” should therefore not be assumed to produce exactly the same property consequences in Peru as a Peruvian separation-of-property regime.

Is an apostilled prenuptial agreement enough for SUNARP?

Not always.

Articles 2051, 2052 and 2053 of the Peruvian Civil Code provide the general framework concerning the application, proof and determination of the content of foreign law.

The practical lesson is significant: apostilling and translating a foreign document may not be enough if its legal effect under the governing foreign law has not been sufficiently established.

How can a foreign marital property regime be established before SUNARP?

There is no single closed list of documents applicable to every case.

When the content of foreign law cannot be sufficiently determined by the Peruvian registry authorities themselves, appropriate documentary evidence may be required to establish its existence, current force, content and legal consequences.

Depending on the circumstances, that evidence may include certified legal texts, official information from the foreign state, judicial precedents, certifications, legal opinions or reports prepared by qualified lawyers or experts.

Documents issued abroad must also comply, where applicable, with the apostille, legalization and translation formalities required for their use in Peru.

What if you do not currently have a separation-of-property regime?

Marriage abroad does not mean that every buyer must first execute a separation-of-property agreement.

The applicable law and the marital property regime already in force must first be identified.

If that regime does not produce the property result the buyer intends, it may then be necessary to evaluate whether the competent foreign law allows the spouses to modify their regime through a separation-of-property agreement, postnuptial agreement, marital agreement or another legally recognized mechanism.

When such a change must be made under foreign law, advice from a lawyer admitted in that jurisdiction may be required. The Peruvian analysis then focuses on the legal effect of that foreign arrangement on the purchase and registration of the property in Peru.

What happens if SUNARP observes or refuses the registration?

SUNARP may observe or refuse the requested registration if the documents do not adequately establish the foreign marital property regime and its legal effects.

Depending on the issue identified during registry review, it may be necessary to provide additional evidence of foreign law, supplement the documentation, revise the deed or reconsider the legal structure of the acquisition before requesting registration again.

Why should this be reviewed before you sign the purchase?

Putting only your name on the purchase document does not, by itself, determine that the property is legally your separate property.

A preventive review can identify the governing law, the current marital property regime and the evidence that should be prepared before the acquisition is submitted to SUNARP.

Foreign nationals and non-residents who have other legal matters connected with Peru can also review legal services in Peru for international clients .

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