When facing the break-up of a marriage in Spain it is important to get one's bearings as quickly as possible. A brief overview of how the Spanish legal system deals with divorce and how it applies in particular to non-spanish nationals is useful.
For a comprehensive list of the services available via Spainwide in the area of family-law in Spain, please click on the following link: Family Law Spain.
Following legislation enacted in 2005, it is now a great deal easier to file a divorce petition in Spain - there is no need for a separation period, or even grounds for the divorce. All that is required is that a period of three months has elapsed since the marriage took place.
Where both spouses are in agreement on matters such as custody of the children and division of matrimonial assets then the process known as 'Divorcio Express' can be availed of. As the name suggests this is the quicker of the two methods and also has the benefit of being considerably cheaper as it avoids extensive litigation and the expense that this entails.
The process becomes essentially an administrative one and is typically dealt with by a legal firm specialised in the matter and who will draw-up and file the relevant legal documents.
The documentation typically required includes the certificate of marriage, birth certificates of any children of the marriage (both available from the Registro Civil), and the certificate of empadronamiento of one of the spouses.
There should also be an accompanying covenant 'convenio regulador' which sets out the agreement between the parties regarding matters such as what to do with the marital home, care and maintenance of any children, division of shared assets and eventual pension entitlements. It should be noted however that the judge will scrutinize the agreement to make sure that it conforms to Spanish law and that the interests of the children are safeguarded.
Express Divorce Process
The convenio is signed by both spouses and, together with the other documentation, is submitted to the court by the legal representative. A 'procurador' (similar to a barrister) will then manage matters on behalf of the spouses at the time of the court hearing.
After establishing that the law has been respected and that the interests of the children have been safeguarded, the judge signs the divorce decree . The whole process takes between three and six months to complete.
If it is unnecessary to obtain advice on the application of foreign laws to the divorce proceedings then all that is required is the assistance of an experienced lawyer in Spain to draw-up the agreement on behalf of the spouses.
The Spainwide network of independent and expert legal practitioners across Spain can assist by providing a service that is specially designed for English speakers. For more information please go to Express Divorce Spain
This is where one spouse files for divorce without the agreement of the other. This may be for any number of reasons but often is a result of failure to agree on how to deal with matters such as custody of children, visitation rights and distribution of marital assets after the divorce.
Because foreign legal jurisdictions apply different rules on how marital assets should be distributed between the spouses or the validity of prenuptial agreements, for example, the question often arises as to which jurisdiction applies. This can be a very complex issue where the spouses are of different nationalities and have lived in various countries.
It is possible however to identify three typical situations that arise in Spain which may be set-out as follows:
1) Where one spouse is Spanish and the other is not
Here the Spanish courts will tend to apply Spanish law.
This may be rather different to what you would expect in your country of origin and accordingly it is important to understand what this means for your specific situation.
Qualified and expert solicitors in this area can assist with legal advice on how Spanish family law will apply to your particular circumstances. For more information please go to: Contentious Divorce Spain
2) Where neither of the spouses are Spanish
Where both of the spouses are of the same nationality the Spanish court will seek to apply the national law of that jurisdiction .
Accordingly two British nationals who seek a divorce in Spain will have the law from the region of the UK where they married applied. Where there is a dispute as to how marital assets are to be distributed then expert opinion from the UK may be required.
Should you require advice on the application of the laws of the UK or Ireland to a Contentious Divorce in Spain please find information on this service here: Contentious Divorce plus foreign legal advice in Spain.
3) Either situation 1) or 2) above but petition filed outside Spain
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her "domicile" there.
As previously stated, the country in which the petition for divorce is filed can make a huge difference in the outcome of the divorce proceedings. If it is the case that a petition can be filed in more than one jurisdiction, the so-called "first-past-the-post rule" applies so the jurisdiction in which the petition is first filed applies.
While often justifiably criticised, it is the applicable law and as such, anyone finding themselves in this situation may find themselves in a detrimental situation should they fail to act promptly.
As a result of the Spainwide network of independent and expert legal practitioners across the UK, Ireland and Spain we can provide you with the necessary advice to determine where a divorce petition may be correctly filed. Should that require a filing in the UK or Ireland then our seasoned solicitors can provide this assistance also.
Please go to foreign-divorce petitions for more information on this service.
Legal Arrangements within Spanish Marriages
There are two types of legal arrangement into which all couples married in Spain are registered: "sociedad de gananciales" and "separacion de bienes". Only in Cataluña and the Balearic Islands do they consider all marriages to be "separacion de bienes" by default.
If neither arrangement is specified on the marriage certificate, in the vast majority of autonomous communities in Spain it is automatically presumed to be "sociedad de gananciales"
The type of legal arrangement entered into is of utmost importance when matrimonial assets must be divided between the spouses.
In this form of marriage the spouses put together and share the goods or benefits obtained by each other during the marriage. There are however certain assets that are by their character private in nature and so are not considered appropriate for division between the parties upon divorce. So how to know which type of assets are considered private and which are shared?
Assets Considered to be Shared:
- Those earned via work or the efforts of either of the spouses i.e. the salary, pension and other work benefits.
- Any earnings, interest or benefits of either shared or private goods.
- All assets acquired with money and for example companies founded during the marriage, where shared resources are used.
- Money won in games of chance or lotteries.
- Assets received jointly and without consideration by the couple such as donations and inheritances.
- Goods acquired as a result of a 'right to first refusal' that are shared by the couple.
Assets considered to be Private:
- Those which existed before the marriage or the agreement to establish the 'shared' type of marriage arrangement.
- Any assets received without consideration such as inheritance by one of the spouses.
- Assets acquired as a result of a 'right to first refusal' by one of the spouses only.
- Any assets purchased with 'private' resources e.g. property purchases with money inherited by one of the spouses only.
- Money received as a result of personal damages such as compensation payments for an accident or insurance payment for damage to a 'private asset'.
In the 'shared' type of arrangement, the assets are inventoried and any liabilities are subtracted from the assets (including taxes etc) before being divided between the couple.
Separación de Bienes
In this 'separate' arrangement, each spouse controls absolutely and completely independently their assets and earnings with the only proviso that they must contribute to the marriage's combined liabilities.
Each spouse may act in accordance with the agreement drawn-up creating the 'separated' arrangement (such an agreement is necessary unless in one of the Autonomous Communities that implies it in the absence of an agreement). The couple may agree on a percentage contribution in the marriage agreement. If this has not been formally agreed then it is implied that the responsibility for liabilities is in proportion to each one's resources.
Work carried out in the home is considered as a contribution to the liabilities of the couple such that the spouse that worked in the home is entitled to maintenance payments.
One benefit of this type of arrangement is that should one of the spouses contract a liability, they can only be liable up to the limit of their own resources and not those of their spouse.
Distribution of the marital home
Where there are children below the age of majority and no agreement between the parties as to how to distribute the family home then the use of the marital home shall be enjoyed by the spouse who obtains custody even though this be a 'private' asset of the other spouse. This spouse may not sell or mortgage the property without the consent of the other spouse or a judge - the priority at all times being the protection of the children.
Where the spouse that owns the marital home as a 'private asset' continues to pay the mortgage then this may continue to be tax deductable although they do not ordinarily reside there.
Where there are no children below the age of majority and the marital home is a 'shared asset' either of the spouses may continue living in the property until it is distributed by sale. If the divorce produces an imbalance in the economic level between the two then the use of the home may be given to the most necessitous.
If the home is a private asset of one of the spouses then, after the divorce it continues to be. The judicial possibility does exist in exceptional cases to temporarily grant the use of the home to the spouse requiring more protection.
Known as 'Pensión alimenticia' this is meant to cover any necessities that the child may have - not only for basic nutrition but those related to housing, clothing, education, health etc. No hard rule exists to determine the amount that is payable and it will depend on the child's expenses and the income of the non-custodial parent.
These are less common and are awarded only when one spouse is clearly disadvantaged in comparison to the other upon separation. Where both spouses have work and an equivalent income it does not tend to be awarded.