Clients may have a choice of where to divorce. Here we examine some of the very different procedures and possible outcomes that may arise if a couple has the right to divorce both in Spain and England or Wales (which, for simplicity, we’ll refer to here simply as ‘England’).
London is (in)famously billed as “the divorce capital of the world”. It’s where poorer spouses most want to divorce their richer other halves. Its sometimes huge financial orders aren’t seen in Spain, and Spanish courts don’t make the eye-watering asset-redistribution orders that an English court can. But spouses can’t necessarily choose England over Spain (or vice versa) just because it looks better for them: there must be a genuine link between the couple and the country for them to divorce there. This link may be based on habitual residence, nationality or domicile.
Where that link is present for both England and Spain but a spouse believes that divorcing in one of those countries would be advantageous, there may be a race to “get in first” – meaning to file a divorce petition in one country before their spouse does so in the other, thereby ensuring they divorce in the country they view as best for them. In such a situation, lawyers need to move fast. But it’s likely to be quicker drafting the necessary paperwork to file first in England than it is in Spain because:
- in England, a divorce is launched by presenting in court a form-filled petition and following that up with detailed financial analysis later, whereas
- in Spain, to start a divorce, all the very careful drafting (including regarding financial claims) must be done at the outset.
In the English court, there are strict rules designed to stop a spouse misleading their other half – and hence the court – by committing perjury (i.e, lying to the court).Spouses divorcing in England who deliberately set out to hide the extent of their wealth or the location of their assets may find themselves in deep trouble, perhaps even in jail. Contrast Spain, where a spouse can’t be prosecuted for perjury in divorce proceedings. So if there’s a high level of doubt about the extent or location of a spouse’s assets (perhaps they’re hidden off-shore, for example), it’s more likely they’ll be rooted-out in the context of an English divorce than in a Spanish one.
It’s due to that key difference that you don’t see sworn statement (‘affidavit’) evidence in Spanish divorces. A Spanish court isn’t so much interested in what someone says happened as whether it can be proved independently: Hence a wife who says “He hit me when drunk” had best back-up her statement by reporting her husband’s violence to the police (otherwise, her recounting of events may not carry much weight in court).
Depending on which region of Spain is relevant in a divorce, what are known as ‘matrimonial regimes’ may largely dictate the financial results. Some Spanish regions (Madrid being an example) uphold a shared matrimonial regime (known as gananciales): This means that assets acquired by one spouse after marriage will be treated upon divorce as being shared: Thus, a house which is bought as an investment after marriage in just the wife’s name will automatically be treated in a Spanish divorce regulated by this regime as being half-owned by her husband. This form of sharing pursuant to a matrimonial regime is not seen in English divorces, where the starting point will be more akin to the second form of Spanish matrimonial regime (called separación de bienes and applicable in the Balearic Islands, such as Mallorca and Menorca for instance). Under that regime, following marriage, what’s bought or earned by him is deemed to be his and what’s bought or earned by her is taken as being hers.
But even the separación de bienes regime can vary depending on which part of Spain applies it. In Cataluña for instance, the poorer spouse may be awarded compensation if they demonstrate substantial dedication to the family home or business without having been paid for that (or paid enough), whilst their spouse has got wealthier during the marriage.
Yet Spanish judges don’t just apply Spanish law or the law of Spain’s seventeen semi-autonomous regions. They may also apply foreign law. Thus a French and German national divorcing in Spain who signed no pre-nuptial agreement and lived in Portugal immediately after marrying, will have Portuguese law applied by the Spanish court to splitting their matrimonial assets. The thought of applying another country’s laws would send an English judge into a spin. So if you end up divorcing in England, rest assured that good old English law will rule!
Christopher is a dual-qualified English solicitor and Spanish ‘abogado’ and highly experienced family practitioner who established his own Spanish law firm in 1994.
He has worked on the most complex cases, including: divorce; financial provision and adjustment; child contact and abduction; as well as pre-nuptial agreements. Christopher frequently provides expert opinions on Spanish law and practice for foreign courts, and he and his Spanish counsel colleagues act throughout Spain and its islands, specialising in cross-jurisdictional matters.”
Christopher can be reached on on (00 34) 93 415 0677.