Contemplating Divorce Proceedings In Spain?
Stowe Family Law’s international department is highly recognised for the work that we do for our clients based outside of the UK. We work with a worldwide network of lawyers in Spain and other jurisdictions in order to provide complete peace of mind for our clients.
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.
Divorce and Jurisdiction
Under Spanish law, a divorce in Spain can be granted:
- At the request of both spouses
- At the request of one of the spouses, with or without the consent of the other.
Since July 2005, you must wait only three months after the start of your marriage to seek an order for legal separation or divorce in Spain. You can also make a very early proposal to your spouse through your lawyers with your Spanish divorce petition (this is discussed in more detail below).
How can you find out whether or not you can issue proceedings in Spain?
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.
Financial arrangements for children / child maintenance
If your spouse has filed for divorce in Spain, the judge will address the issue of child maintenance at a very early stage. If your spouse has already made an offer regarding child maintenance payments, you need to reply and set out your financial circumstances as soon as possible.
We have seen cases in which our client has issued divorce proceedings in England and Wales before the other spouse has issued in Spain. However because the spouse detailed their financial circumstances in his or her Spanish Petition proposal, the Spanish judge has expected that all financial issues will be addressed at this early stage. This can cause difficulties, particularly if you are not aware of the full “matrimonial pot”, and if you do not know whether or not the offer is fair.
It is also important to bear in mind that in Spain, the responding party carries the burden of proof in relation to all financial assets. In our experience this can be a very effective advantage if you are the paying party, but can also mean an extreme disadvantage for the other spouse, especially if they are not fully informed about the total amount of matrimonial finances.
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.
International Child Abduction
Spain is party to the Hague Convention on the Civil Aspects of Child Abduction, which outlines methods to return a child who has been “internationally abducted” by a parent or family member from one member state to another. This includes a child who has been illegally taken away from his or her home.
You can usually take this to mean that Spain is a “safe country” for your children, because all contracting states of the Hague Convention “shall act expeditiously in all proceedings seeking the return of a child” (Hague Convention, Article 11).
Finance, Assets and Disclosure
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 (“la pension compensatoria”)
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.
Prenuptial agreements are not always upheld in the UK (see Radmacher v. Granatino for further information). However they are enforceable in Spain. This means that when they exist, prenuptial agreements are almost always taken into account in the event of a separation or divorce in Spain – unless the agreement is seriously detrimental to one of the spouses or the children.
If you require further advice and assistance about family law and divorce in Spain, or about issuing divorce proceedings in England, contact us.
OTHER INTERNATIONAL LINKS
If you are stranded in Spain, you can contact the British Embassy who can provide information about family law at:
Paseo de la Castellana 259D
Telephone: 917 146 300
Facsimile: 917 146 301
DISCLAIMER: This page does not provide legal advice. Instead, it provides general information about the possible implications of divorce in Spain. You must always take your own legal advice as your circumstances may be different and family law is continually changing.