Contemplating Divorce 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.

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.

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).

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.

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.