Marriage in Peru automatically creates a community property regime, unless the spouses agree otherwise. For many couples—especially binational marriages—this default system can raise questions when buying property, managing assets, or planning for the future. This article explains how the separation of assets works under Peruvian law, when and how it can be established, and what legal effects it has on real estate transactions, debts, and inheritance.
1. General framework
In Peru, there are two marital property regimes: the community property regime, which is the general regime and applies by default as a consequence of civil marriage, with the exception of assets received by inheritance or donation, which do not form part of the community property; and, as an exception, the regime established by agreement through a public deed, known as the separation of assets, which will be the main focus of this article. We have frequently observed, particularly in binational couples, that this is a legal tool that is increasingly used. In Europe and the United States, it is a common and widely accepted practice; in Latin culture, however, it remains a culturally sensitive topic, although it is fully permissible from a legal standpoint. This is the reason for drafting this article.
The choice of the marital property regime may be made through a prenuptial agreement, or it may also be carried out through a change of regime during the marriage. Any change requires a public deed and registration with the Personal Registry of SUNARP in order to be enforceable against third parties. The change has no retroactive effect; that is, it produces constitutive effects and does not alter or modify obligations or rights acquired prior to the establishment of the separation of assets regime or its substitution. Accordingly, the regime always produces effects going forward and not retroactively.
2. What is separation of assets under Peruvian law?
Each spouse retains ownership, management, and disposal of their present and future assets.
Debts: each spouse is responsible for their own obligations, except for joint debts or those expressly guaranteed jointly in connection with a specific contract or obligation.
There is no community property to be liquidated upon termination of the regime, whether due to divorce or death.
Family obligations: separation of assets does not eliminate duties of support, maintenance, or the protection of the family home.
3. When and how is it established?
3.1 Before marriage (prenuptial agreement)
Drafting of a prenuptial agreement indicating the choice of the separation of assets regime, also known as separation of property.
Execution of the agreement as a public deed before a notary public.
Registration with SUNARP – Personal Registry and marginal notation in the marriage record (once the marriage has been celebrated).
Effects vis-à-vis third parties from the date of registration.
3.2 During the marriage (change of the marital property regime)
Agreement of both spouses through a public deed to change from the community property regime to the separation of assets regime.
Inventory or declaration of assets and liabilities as of the date of the change (recommended to avoid future disputes).
Registration with SUNARP.
Effects: prospective only, from the date of registration. Assets already in existence retain their registered owner; community property accrued up to that date is liquidated in accordance with the rules of the prior regime.
3.3 Timeframes and practice
Notary: 2 to 5 business days (provided that the documentation is complete).
Registry: approximately 7 to 10 business days.
Typical documents: national ID, marriage certificate, draft agreement, inventory or declaration of assets, and powers of attorney, if applicable, for representation of the spouses.
4. Legal and economic benefits
Clarity of assets: it prevents disputes regarding the ownership of property, money, or other assets, as it clearly establishes to whom each asset belongs.
Efficiency and speed in transactions: each spouse may buy, sell, or mortgage their own assets without the need to confirm community property status; in other words, the other spouse does not participate in the transaction.
Limited risk: business or professional debts incurred by one spouse do not affect the other spouse’s assets.
Simplified inheritance: upon the death of one spouse, the inheritance applies directly to that spouse’s own assets, without a prior liquidation of community property. The surviving spouse retains inheritance rights and inherits in the same proportion as the children.
5. Protection of the family home
Regardless of the marital property regime, Peruvian law generally requires the consent of the other spouse in order to sell or encumber the family home. This requirement serves as a safeguard of the marital residence.
Recommendation: public deeds should expressly state whether the property does or does not constitute the family home and, if it does, include the corresponding spousal consent.
6. Notarial implementation - Step by Step
Initial meeting and verification of the parties’ identity and marital status.
Preparation of the draft agreement for marital capitulations or substitution of the marital property regime, which must include:
Full identification of the parties.
An express declaration by the spouses that they opt for the separation of assets regime.
A reference inventory of assets and liabilities as of the relevant date.
A clause stating that the effects of the regime arise from its registration with SUNARP and are enforceable against third parties.
Execution of the public deed before a notary public.
The notary submits an official copy of the deed, known as the “notarial filing” (parte notarial), to the Personal Registry of SUNARP.
Issuance of the registry entry and, where applicable, the marginal notation in the marriage record. Once registered, a certified registry extract (“literal copy”) may be obtained. This document can be downloaded online using the electronic registry number shown in the upper right corner of the registry extract.
Issuance of a certificate for use in subsequent transactions (banks, notaries, SUNAT, municipalities). In Peru, for banking or notarial transactions, the registry certificate must be up to date; it is usually valid for 30 days, after which a new updated certificate must be obtained.
7. How it operates in real estate transaction
7.1 Purchase
Separation of assets: the purchasing spouse acquires the property in their own name.
The public deed must state the marital status, the separation of assets regime (attaching the corresponding registry certificate), and whether or not the property will constitute the family home.
If the property is declared as the family home from the outset, the consent of the other spouse must be included.
7.2 Sale
If the property does not constitute the family home: only the registered owner signs the deed.
If the property does constitute the family home: the other spouse must also sign, providing their consent.
Banks and creditors usually require a valid registry entry evidencing the separation of assets regime, an updated marriage certificate, and, where applicable, a declaration that the property does not constitute the marital home.
7.3 Financing and taxes
In a purchase financed with a mortgage loan: the registered owner signs; if the property constitutes the family home, the consent (signature) of the other spouse is again required.
Taxes: the marital property regime does not modify the application of the ITF, property transfer tax (alcabala), property tax, or first-category income tax; it only determines who is the taxable person.
8. Inheritance effects under separation of assets
Separation of assets does not affect the surviving spouse’s status as an heir.
Upon the death of one spouse, the inheritance comprises only that spouse’s own assets.
The surviving spouse is a forced heir and inherits in equal shares with the children; that is, the spouse receives a portion equivalent to that of one child.
For example, if one spouse, who was the sole owner of a property under the separation of assets regime, dies leaving two (2) children, the surviving spouse inherits the same percentage as each child, meaning that the spouse and each child are entitled to 33.33% of the property.If there are no descendants but there are ascendants, the spouse inherits together with them in the proportion established by the Civil Code.
If there are neither descendants nor ascendants, the spouse inherits the entire estate, subject to any testamentary dispositions within the limits of forced heirship.
Forced heirship and disposable portion: separation of assets does not modify the statutory limits of forced heirship or the freely disposable portion that the deceased may allocate by will.
9. Risks and best practices
Registration: if the deed is not registered with SUNARP, the change of the marital property regime is not enforceable against third parties.
Inventory: attaching an inventory helps prevent future claims regarding alleged “community property.”
Family home: verify and expressly agree on the spousal consent requirement. Even if the property is a separate asset, if it is used as the family residence, it must be expressly determined whether the consent of the non-owning spouse is required.
Powers of attorney: if one spouse will frequently act on behalf of the other (due to travel, absence from the city, or similar reasons), it is advisable to grant a special power of attorney duly registered.
Banks: provide a certified and up-to-date copy of the registry entry (never older than 30 calendar days) to avoid unnecessary requests for the other spouse’s signature in transactions where it is not legally required.
10. Model clauses
Marital capitulations / Substitution of the marital property regime
“The appearing parties agree to subject their marriage to the separation of assets regime, with effects as from the registration of this deed with the Personal Registry of SUNARP. They declare the following reference inventory of assets and obligations as of this date, which does not limit full individual ownership over present and future assets.”
“Los otorgantes convienen en sujetar su matrimonio al régimen de separación de patrimonios, con efectos a partir de la inscripción de la presente escritura en el Registro Personal de SUNARP. Declaran el siguiente inventario referencial de bienes y obligaciones a la fecha, el cual no limita la plena titularidad individual sobre los bienes presentes y futuros.”
Declaration in a real estate transaction
“The appearing party declares that he/she is married under the separation of assets regime, according to Registry Entry No. XXX of the Personal Registry of SUNARP, and that the property does not constitute the family home; therefore, the consent of the spouse is not required. Should this condition change, the parties undertake to comply with the applicable legal formalities.”
“El compareciente manifiesta ser casado bajo el régimen de separación de patrimonios, según Asiento N.º XXX del Registro Personal de SUNARP, y que el inmueble no constituye vivienda familiar; en consecuencia, no se requiere el asentimiento del cónyuge. En caso de que dicha condición variara, las partes se obligan a observar las formalidades de ley.”
Spousal consent for the family home
“The non-owning spouse also appears and, in his/her capacity as the seller’s spouse and for the protection of the family home, grants his/her express consent for the present transfer, in accordance with the law.”
“Comparece además el cónyuge no propietario, quien, en su calidad de cónyuge del vendedor y en resguardo de la vivienda familiar, otorga su asentimiento expreso para la presente enajenación, conforme a ley.”
Important checklist for preparing a real estate sale agreement under the separation of assets regime
Recent marriage certificate (not older than 30 days). If the marriage was celebrated abroad, it must be apostilled and translated.
Draft of the marital capitulations or substitution agreement, together with the inventory of pre-existing assets.
Public deed and submission of the notarial filing (parte notarial) to SUNARP.
Request for the registry certificate evidencing the marital property regime for use in future transactions (usually accepted for 30 days).
Inclusion of the relevant family home clause(s) in real estate transactions.
A real estate due diligence file focusing on ownership, liens, marital status, property regime, family home status, municipalities, and SUNAT.
Separate of assets in Peru: Key Questions Answered
In Peru, the default marital property regime is the community property regime (sociedad de gananciales). This regime applies automatically upon civil marriage unless the spouses expressly choose a different regime through a public deed.
Separation of assets is a marital property regime under which each spouse retains ownership, management, and disposal of their own present and future assets. There is no community property, and each spouse is generally responsible for their own debts.
Separation of assets can be agreed before marriage through a prenuptial agreement or during the marriage by substituting the existing marital property regime. In both cases, the agreement must be executed by public deed and registered with SUNARP.
No. The separation of assets regime does not have retroactive effect. It produces legal effects only from the date of its registration with SUNARP and does not alter rights or obligations acquired before that date.
Yes. Under separation of assets, a spouse may purchase property in their own name, without the participation of the other spouse. However, the marital status and regime must be declared in the public deed.
Spousal consent is not required if the property does not constitute the family home.
If the property is used as the family home, the consent of the other spouse is required, regardless of the marital property regime.
Each spouse is liable only for their own debts, unless a debt was expressly assumed jointly or guaranteed by both spouses. Business or professional debts of one spouse do not affect the assets of the other.
Separation of assets does not affect the inheritance rights of the surviving spouse. The surviving spouse is a forced heir and inherits in equal shares with the children. If there are no descendants, inheritance follows the rules established by the Peruvian Civil Code.
Yes. If the separation of assets agreement is not registered with SUNARP, it is not enforceable against third parties, including banks, buyers, or creditors.
Separation of assets is often chosen by binational couples to ensure clear asset ownership, simplify real estate transactions, limit financial risk, and facilitate inheritance planning across jurisdictions.
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