Navigating Ecuadorian Property Rights: Unión de Hecho vs. Marriage for Expats in Cuenca

As an expat real estate broker and property lawyer practicing in Cuenca, I've witnessed firsthand how the dream of owning a home here can turn into a legal nightmare if not handled with expert care. The allure of our city is undeniable, but the legal landscape, particularly concerning property rights for unmarried couples, is filled with nuances that generic advice simply cannot address. This guide cuts through the ambiguity, providing the specific, actionable intelligence you need to protect your investment.

The most critical distinction for couples is understanding how Ecuadorian law treats a formal marriage versus an Unión de Hecho (civil union) when it comes to real estate. The financial and inheritance outcomes are profoundly different.

Understanding Unión de Hecho (Civil Union) in Ecuador

An Unión de Hecho is a legal recognition for couples who have lived in a stable, monogamous relationship for at least two years. It is born from the reality of your shared life. However, this is where a critical mistake is often made: for property law purposes, its mere existence is legally insufficient. To have any enforceable rights, the Unión de Hecho must be formally declared and registered.

Without this formal step, you have no automatic claim to property acquired during the relationship. Proving your rights later in court is an expensive, uncertain, and emotionally draining battle.

Formalizing Your Union: A Non-Negotiable Step

Formalization is not a suggestion; it's a requirement for financial protection. It can be done in two ways:

1. Declaration before a Notario (Notary Public): The most common and straightforward method. You and your partner appear before a Notary, present identification, and declare your union under oath. This creates a public document establishing the start date of your union.
2. Court Order (Sentencia Judicial): If one partner is deceased or disputes the union, a judge can declare it. This requires presenting extensive evidence—shared bank accounts, witness testimony, photos—and is a far more complex process.

Expert Detail #1: The Power of a Private Agreement. For my clients in a formalized Unión de Hecho, I strongly advise drafting a documento privado (private agreement) alongside the declaration. This document, prepared by a lawyer, explicitly details how assets, particularly real estate, will be divided upon separation or death. It preemptively resolves disputes over contributions and ownership percentages, providing a level of clarity that the Unión de Hecho alone does not offer.

Marriage in Ecuador: The Default Legal Shield

Marriage in Ecuador is a formal contract with a default property regime called sociedad conyugal (community property). This is the single most important legal concept for married couples to understand.

• Sociedad Conyugal (Community Property): This is the automatic, default setting. All property and assets acquired during the marriage by either spouse are considered joint property, owned 50/50. This applies regardless of whose name is on the title deed (Escritura Pública). Property owned before the marriage, or received as a direct inheritance or gift during the marriage, remains separate.
• Separación de Bienes (Separation of Property): Couples can opt out of the default by signing a formal agreement, typically before marriage, to keep all assets separate. This is a deliberate choice and not the default.

The sociedad conyugal provides a powerful, automatic legal framework that simplifies property division and inheritance, offering a level of protection that an Unión de Hecho lacks without extra legal work.

Key Legal Differences in Real Estate Transactions

Property Acquisition

• Marriage (Sociedad Conyugal): If one spouse buys a property during the marriage, it automatically belongs 50/50 to the community property, even if only one name is on the Escritura Pública. The law presumes joint ownership.
• Unión de Hecho: Even when formalized, there is no automatic legal presumption of 50/50 ownership. The property belongs to the person whose name is on the title. To ensure joint ownership, both partners' names must be explicitly listed as buyers on the Escritura Pública. Failing to do this creates a significant risk for the non-titled partner.

Inheritance Rights

This is where the differences are most severe.

• Marriage: A surviving spouse is a primary heir. They automatically retain their 50% of the community property. They then inherit a significant portion of the deceased spouse's 50% share, alongside any children. Their rights are clearly defined and protected by law.
• Unión de Hecho: While a formalized union grants the surviving partner inheritance rights, they are often secondary to other heirs, like children or even the deceased's parents. Without a specific, legally probated Ecuadorian will (testamento), the surviving partner can easily be disinherited or face a lengthy court battle with the deceased's family.

A Broker-Lawyer's Due Diligence Checklist for Cuenca

Before you sign anything, this is the hands-on due diligence my team and I perform. This is non-negotiable.

1. Obtain the Certificado de Gravamen. This is the first and most critical step. We pull this certificate from the Registro de la Propiedad (Property Registry) in Cuenca. It is a complete legal history of the property, revealing any existing mortgages (hipotecas), liens (gravámenes), court-ordered embargoes, or ownership disputes. No deal proceeds without a clean certificate dated within the last 30 days.

2. Verify Municipal Solvency. We obtain a certificate of no debt (certificado de no adeudar al municipio) from the Cuenca municipality. This confirms all property taxes (impuestos prediales) are paid. An unpaid tax bill can hold up a sale indefinitely.

3. Confirm the Property's Legal Structure. Is it a standalone house (propiedad independiente) or part of a condominium/apartment building (propiedad horizontal)?

   • Expert Detail #2: The Propiedad Horizontal Trap. For apartments, buyers are not just purchasing a unit; they are buying into a legal entity with shared responsibilities. We meticulously review the building's internal regulations and the recorded declaratoria de propiedad horizontal. We also check for outstanding monthly maintenance fees (alícuotas), as the new owner can inherit this debt.

4. Scrutinize Closing Costs & Taxes. Buyers must be prepared for closing costs.

   • Expert Detail #3: The Alcabalas Tax. The primary tax paid by the buyer is the Alcabala, or property transfer tax. In Azuay province, this rate is currently 1% of the property's sale price as listed in the deed. This tax, along with notary and registration fees, must be paid before the final Escritura Pública can be registered. For sellers, they are responsible for the municipal capital gains tax, known as the plusvalía, which is calculated on the "extraordinary" gain and can be a significant, often overlooked, expense.

⚠️ Broker's Legal Warning: The Single Biggest Risk for Unmarried Couples

The most catastrophic and common error I see with expat couples in an Unión de Hecho is placing the property title in only one partner's name to "simplify" the transaction. This is a grave mistake. Should the relationship dissolve or the titled partner pass away unexpectedly, the non-titled partner has no direct, immediate claim to the property. They are left with a brutal uphill legal battle to prove their contribution and claim their share, a fight they may very well lose. Always insist on both names being on the Escritura Pública as co-owners (copropietarios).

Conclusion: Your Foundation for a Secure Investment

While Ecuador legally recognizes the Unión de Hecho, the institution of marriage offers a far more robust and automatic system of legal and financial protection for property owners. For those in an Unión de Hecho, achieving a similar level of security is possible but requires deliberate, proactive legal steps: formal declaration, a private property agreement, and meticulous titling of the Escritura Pública.

Navigating this requires more than a salesperson; it requires a guide with deep roots in both Cuenca's real estate market and its legal system. Your investment deserves nothing less.

Ready to secure your dream home in Cuenca the right way? Schedule a complimentary property-risk consultation with me today. Let's build your future in Ecuador on a foundation of absolute legal and financial certainty.