Your ex is hiding assets in the gananciales liquidation
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
What he took out does not disappear. Article 1397 of the Código Civil requires the assets to include the updated value the property had when disposed of through an unlawful or fraudulent transaction, if it has not been recovered, and article 1390 makes him a debtor of the community. The fight takes place in the formation of the inventory under article 809, with banking evidence.
You divorced a year ago and now the community must be liquidated. Your former husband files an inventory in which the community barely holds an old car and an account with 900 euros. You remember that six months before the claim he sold a parking space, transferred 40,000 euros to his brother's account and cashed in an investment fund. He answers that the money was spent, that the parking space was his from before and that there is nothing left to divide. You do not have the statements.
The case, in five lines
- What is brought
- An application for the formation of the inventory under article 808 of the Ley de Enjuiciamiento Civil, contesting the items listed and relying on articles 1390, 1391 and 1397 of the Código Civil to bring back into the assets what was fraudulently disposed of.
- Before which court
- The sección de familia del Tribunal de Instancia (the family section of the first-instance court) hearing or having heard the divorce, or the Violencia sobre la Mujer section if that was the competent one, following the criterion of article 807.
- Deadline
- The liquidation does not lapse while the community remains undivided, so no time limit throws you out of the case. What is lost with time is the banking evidence, because banks do not keep transaction detail indefinitely.
- Who can bring it
- Either spouse and, where one has died, their heirs, under articles 808 and 810 of the Ley de Enjuiciamiento Civil.
- Financial risk
- Alleging fraud without documentary evidence is the quickest way to lose credibility and bear the costs of the incident. If valuations are disputed the expert report must be paid up front, and the case can lengthen when an accountant and experts are appointed for want of agreement.
The case is won in the inventory, not in the division
Liquidation has two stages and almost everyone fights in the wrong one. First it is decided what there is, and only then how it is divided. Article 808 of the Ley de Enjuiciamiento Civil allows either spouse to apply for the formation of the inventory, attaching a proposal that sets out separately the different items to be included and the documents that justify each of them.
That is where concealment is decided. If the inventory is approved with the list filed by the person who emptied the community, the later division will be impeccable over a falsified estate, and what was taken out never returns. That is why the proposed inventory is not a form: it is the pleading that lists the missing items, explains why they belong there and attaches the evidence for each.
Article 806 marks out the ground: the liquidation of any matrimonial property regime that, by marriage settlement or by law, creates a common pool of assets and rights subject to charges and obligations is carried out, absent agreement between the spouses, under this chapter and the applicable civil rules. The procedural law channels the case; the Código Civil decides its content.
Assets disposed of in fraud return at their updated value
Article 1397 of the Código Civil lists what must be included in the assets, and its second paragraph is the decisive rule in this case: the updated value the property had when disposed of through an unlawful or fraudulent transaction, if it has not been recovered. It is neither a discretionary award nor a penalty: it is an inventory item the court must include once the disposal is proven.
That same article adds another route to recovery that few expect: the updated amount of sums paid by the community which were the sole responsibility of one spouse and, in general, those constituting claims of the community against that spouse. If the community paid the mortgage on your ex's own flat or his personal debts, those sums are a claim of the estate and are sought in the same proposal.
Article 1398 does the mirror image with the liabilities: debts outstanding against the community, the updated value of separate assets spent in the community's interest and of any deterioration caused by using them for its benefit, and sums paid by one spouse alone that were the community's responsibility. It is worth reviewing, because whoever hides assets tends to inflate liabilities in the same pleading.
Fraud produces two different effects, and both are worth seeking
Article 1390 of the Código Civil provides that where, as a result of an act of administration or disposal carried out by one spouse alone, that spouse obtained an exclusive benefit or gain, or wilfully caused loss to the community, that spouse is a debtor of the community for the amount, even if the other spouse does not challenge the validity of the act. In other words, the debt arises even if the sale stands.
Article 1391 adds the second consequence: where a spouse has carried out an act in fraud of the other spouse's rights, the previous article applies in all cases and, in addition, if the acquirer acted in bad faith, the act is rescindable. The practical difference is large, because it is one thing for your ex to owe money to the estate and quite another for the parking space sold to his brother to return to it.
Hence the strategy. Against the spouse one always seeks the article 1390 debt and the inclusion of the updated value under article 1397, neither of which requires proving anyone else's bad faith. Rescission under article 1391 is reserved for cases where there is material on the acquirer: a price far below market, a payment that never happened, a family link, or use of the asset that carries on exactly as before.
Not appearing on inventory day is the same as signing his list
Article 809 sets a short calendar and a hard sanction. On receiving the application, the court clerk fixes a day and time for the inventory to be formed within a maximum of ten days, and summons the spouses. Where one of them fails to appear without justified cause, that spouse is deemed to accept the proposed inventory put forward by the one who did appear.
If there is a dispute over the inclusion or exclusion of any item or over the amount of any of them, the court clerk records in the minutes each party's contentions and their legal basis and summons the parties to a hearing, following the rules of the juicio verbal. The judgment resolves every question raised and approves the inventory of the matrimonial community.
The same rule on non appearance is repeated at the liquidation stage in article 810, where anyone who fails to attend without justified cause is deemed to accept the other party's proposed liquidation. Two summonses, two chances to lose the case by not turning up, and neither can be put right afterwards by claiming that the scope of the hearing was not understood.
Without agreement, an accountant and experts step in
Once the inventory is approved, article 810 opens the liquidation itself: the application must be accompanied by a proposal including payment of the compensation and reimbursements owed to each spouse and division of the remainder in the corresponding proportion, taking into account the preferences the civil rules establish when forming the lots. That is where the claims recognised in the inventory are collected.
If no agreement is reached at the hearing, an accountant and, where appropriate, experts are appointed by formal order under article 784, and the case continues under articles 785 and following. That outcome is slower and more expensive, so arriving at that hearing with an already cleaned up inventory and solid valuations is usually worth more than any speech about the fraud.
How we run the case, step by step
- 1
Reconstructing the real estate before writing anything
We reconstruct the financial life of the marriage in the years before the breakdown: accounts, sales, cancelled financial products, vehicles and registered ownership. The article 808 proposal is drafted on that map, not on memories.
- 2
Obtaining the missing banking information
Where the statements are not in your hands, we ask the court to require them from the banks. Without that transaction detail, the transfer to the brother is a suspicion; with it, it is a precisely identified item of the assets.
- 3
Inventory application including the concealed items
We file the article 808 application with the proposal set out item by item and its documents, expressly including the updated value of what was disposed of unlawfully or fraudulently and the community's claims against your ex.
- 4
The hearing to form the inventory
At the listing, which takes place within a maximum of ten days, the items are discussed. Where there is a dispute, it is recorded in the minutes with its legal basis and the parties are summoned to a hearing under the juicio verbal rules.
- 5
Hearing and judgment approving the inventory
Documentary and expert evidence on the disputed disposals is taken. The judgment resolves every question raised, approves the inventory and orders what is appropriate on the administration and disposal of the common assets.
- 6
Liquidation and recovery of the recognised claims
With the inventory final, we apply for liquidation under article 810 with a proposal of compensation, reimbursements and lots. If no agreement is reached at the hearing, an accountant and experts are appointed and the case continues under articles 785 and following.
The evidence that decides the case
- Complete statements for every account for the two years before the claim, with the detail of each transaction and its recipient.
- The deed of sale of the parking space and the land registry extract, which fix the date, the declared price and the buyer.
- Proof that the price was paid, or its absence: a sale whose price never reaches any account is the clearest sign of a sham transaction.
- Certificates cancelling funds, pension plans and savings policies, showing where the redeemed amount went.
- The expert report on the updated value of the assets disposed of, which is what allows the article 1397 item to be quantified.
- Documentation on the acquirer: family link, financial capacity to pay and later use of the asset, where rescission under article 1391 is sought.
What closes the door
- Failing to attend the formation of the inventory, or attending without your own proposal. Article 809 deems anyone absent without justified cause to accept the other party's list, and that acceptance cannot be argued later.
- Alleging concealment orally, without documents. Article 808 requires the documents justifying each item to be attached to the proposal, and a fraud allegation without statements is dismissed and makes the case more expensive.
- Letting the years pass. The liquidation does not lapse while the community remains undivided, but banks do not keep transaction detail indefinitely, and without that detail the item cannot be quantified.
- Seeking only rescission of the sale. Article 1391 requires bad faith by the acquirer, whereas the article 1390 debt and the updated value under article 1397 are obtained without having to prove it.
- Signing a friendly division of whatever appears on the list to finish sooner. Once the inventory is approved over a falsified estate, the later division is correct and what was hidden never comes back.
The law that applies
- Art. 1397 CC. Lists the assets of the community: the gananciales property existing on dissolution, the updated value the property had when disposed of through an unlawful or fraudulent transaction if it has not been recovered, and the updated amount of sums paid by the community that were the sole responsibility of one spouse together with the community's other claims against that spouse. BOE-A-1889-4763
- Art. 1390 CC. A spouse who, through an act of administration or disposal carried out alone, obtains an exclusive benefit or gain or wilfully causes loss to the community, is a debtor of the community for that amount, even if the other spouse does not challenge the validity of the act. BOE-A-1889-4763
- Art. 1391 CC. Where the act was carried out in fraud of the other spouse's rights, the previous article applies in all cases and, in addition, if the acquirer acted in bad faith, the act is rescindable. BOE-A-1889-4763
- Art. 807 LEC. Assigns jurisdiction over the liquidation to the court hearing, having heard, or which would have had jurisdiction over, the nullity, separation or divorce proceedings, or before which the proceedings on dissolution of the matrimonial property regime are or were conducted. BOE-A-2000-323
- Art. 809 LEC. Requires the formation of the inventory to be listed within a maximum of ten days, deems a spouse who fails to attend without justified cause to accept the attending party's proposal and, where there is a dispute over the inclusion or exclusion of items or over amounts, requires the contentions to be recorded in the minutes and the parties summoned to a hearing under the juicio verbal rules, with the judgment resolving every question and approving the inventory. BOE-A-2000-323
- Art. 810 LEC. Governs liquidation once the inventory is complete: the application is accompanied by a proposal covering payment of compensation and reimbursements and division of the remainder, a hearing is held within ten days, unjustified absence amounts to acceptance and, absent agreement, an accountant and experts are appointed under article 784, the case continuing under articles 785 and following. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
He emptied the account before I filed. Can it be recovered?
Yes, by two routes. Article 1390 of the Código Civil makes him a debtor of the community for the amount if he obtained an exclusive benefit or wilfully caused loss, even if nobody challenges the act. And article 1397 requires the assets to include the updated value the property had when disposed of through an unlawful or fraudulent transaction, if it has not been recovered.
Can the sale of the parking space to his brother be undone?
Only if the buyer's bad faith is proven. Article 1391 provides that, where a spouse has acted in fraud of the other's rights, the debt in the previous article applies in all cases and, in addition, if the acquirer acted in bad faith, the act is rescindable. That is why both are sought: the debt always, and rescission where there is material on the buyer.
Is there a deadline to liquidate the gananciales after divorce?
The liquidation does not lapse while the community remains undivided, so nobody will throw you out of the case for taking time. The real deadline is evidential: banks do not keep transaction detail indefinitely, and article 808 requires the documents justifying each item to be attached to the proposal. The later you act, the harder concealment is to prove.
What happens if I do not attend on the day set for the inventory?
Article 809 is blunt: where one of the spouses fails to appear on the date set, without justified cause, that spouse is deemed to accept the proposed inventory put forward by the one who did appear. Article 810 provides the same consequence at the liquidation stage. Those are two summonses and two chances to lose the case without ever arguing it.
Can I claim back what the community paid on his own flat?
Yes. Article 1397 includes in the assets the updated amount of sums paid by the community that were the sole responsibility of one spouse and, in general, those constituting claims of the community against that spouse. Mortgage instalments on a separately owned property paid with common money fall there, and are claimed as an inventory item, not as a separate request.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.