British expat divorce in Spain

If you are contemplating filing for a divorce in Spain, or if you have received a letter from your spouse or their Spanish lawyer: don’t panic! Take a deep breath and consider the following:

• All of the facts in your particular case are unique, so it’s important that you don’t waste any time. Get in touch with our experienced team of international divorce lawyers today, whose expertise and knowledge of both the Spanish and UK family law systems can guide you through the implications of divorcing in either jurisdiction.
• If you have received advice to issue your divorce petition in England and Wales, or if you know that your spouse will file in England and Wales, contact us immediately and let us consider your options in relation to international child contact arrangements.
• If you have already been served with your spouse’s Child Abduction Application, contact us to discuss your options. Don’t waste time!
• If you have property in Spain and in the UK or abroad, or if you are concerned about your future financial settlement, let us guide you through the process to achieve a cost-effective and fair outcome. If your spouse has assets outside of England and Wales, we will also consider your options about how best to enforce your Agreed Consent Order effectively in a foreign country.
• If you are concerned about how to protect your assets during divorce proceedings, take urgent advice from our team of experienced international lawyers.

Stowe Family Law advises on international divorce throughout Spain and the Canary Islands, assisting the processes and best practices that need to be followed in order to go through the English courts and achieve their desired outcome under English law.

Julian Hawkhead and the team of expert international divorce lawyers at Stowe Family Law are experienced in dealing with all matters pertaining to international family matters, including International Divorce and International Child Law.

The international divorce solicitors at Stowe work alongside clients to understand their needs, before advising on the next steps to achieve the desired outcome in their expat divorce case.

Spain – like all EU Countries – does not follow the same “domicile principles” as England and Wales. The Spanish Civil Code provides that domicile is where a person has their habitual residence, and both domicile and habitual residence have the same meaning under Spanish law. This means that it is enough to show “habitual residence” status to divorce in Spain under Art. 3 Brussels II Revised (EC Regulation 2201/2003).

However, you must be careful if you wish to challenge the jurisdiction as the Respondent in Spain. Don’t fall into the trap of replying or rejecting the offer through your Spanish lawyer, because this might be seen by the local judge as your acceptance of the jurisdiction – and you may have “lost the race” before it has even started.

With regard to parental responsibility in Spain, as a parent you must provide everything in terms of care and upbringing for your child. Both you and your spouse have equal rights when making decisions that have an impact upon the life of a child, such as education and health.

Even if you and your partner are separated and the child lives with only one of you, the other spouse still has equal rights in key decisions in that child’s life.

As outlined above, the disclosure process during a divorce in Spain differs from the Family Procedure Rules in the UK, whereby both you and your partner must give full and frank ongoing financial disclosure.

In Spain, the burden of proof lies with the party who asserts that an asset exists, be that you or your partner. This can cause extraordinary problems, particularly for international couples who have assets not only in Europe, but also in so-called “tax havens”.

Maintenance for the spouse is not automatically awarded in the event of a divorce in Spain. It will only be assigned when either you or your partner would otherwise be left economically disadvantaged by the divorce or separation.

This usually takes place in cases in which one party earns a high salary and will continue to do so, while the other has no career, having given up work to look after any children of the marriage. In such a case, maintenance would be awarded to the disadvantaged spouse in order to “rebalance” the financial situation between the two of you.

The amount of maintenance will be decided by the courts and, if you are the spouse seeking maintenance, you must be able to prove that you will be left disadvantaged by the divorce, in comparison to your lifestyle before the marriage ended and in relation to your ex-partner.

It is usual in Spanish law to establish a matrimonial property regime before you get married. This can also be modified during the marriage.

Community Property is the most common marital property regime in Spain. This states that all assets acquired during the course of the marriage are jointly owned by you and your partner, and will be split equally should there be a separation or divorce in Spain. It is likely that you will have been married under this regime if no prenuptial agreement has been signed (this is discussed in further detail below).

Other matrimonial property regimes include the Separate Property matrimonial regime, which takes into account property acquired before the marriage. There is also the Profit Sharing regime: a points-based system, which allows you to share in your spouse’s profits.

However it is important to note that a Spanish judge can compensate a spouse or child disadvantaged by the divorce, irrespective of the regime employed.

Upon a divorce in Spain, the matrimonial home will usually be allocated to the spouse who has primary care of any minors, but be aware that local judges may have a different definition of “home”. We once saw a case in which a local judge in Malaga would not classify a substantial, eight-bedroom villa as the “family home”.

Please be aware that some autonomous regions in Spain, such as Catalonia or the Basque Country, have different economic regimes. It is particularly important that you seek further advice if you live in these areas.