Where to divorce if you live in Spain
If you are a British expat living in Spain and you are considering divorcing or separating from your spouse or partner, you will be wondering where to begin and what law will apply to you. Contrary to common belief, you do not need to divorce in the country in which you were married.
If you or your husband/wife were born in England, or have connections to England, you may be able to divorce through the English courts. You can read more about whether you can divorce in England on our jurisdiction advice page. If you contact us, one of our lawyers will telephone you without charge to give advice whether you can divorce in England.
We advise British clients across Europe, and assist them to divorce through the English courts, and achieve a financial settlement under English law.
Family law in Spain for unmarried couples
We also assist unmarried clients in Spain to seek financial support from their partner. These claims can include maintenance, provision of school fees for a child, provision of a home and other capital claims. Unmarried British expatriates can make use of the Schedule 1 claim procedure through the English courts. These claims can include an order that one parent provide the legal fees for another parent.
Child disputes and abduction in Spain
Our lawyers advise on a range of children disputes involving British expat families living in Spain. Our lawyers can advise on and draft a parenting plan for families requiring assistance post separation or can assist to implement safeguards for children visiting or relocating to Spain
Using the family laws in Spain to resolve disputes
Sometimes, British expats living in Spain may not have jurisdiction to divorce in England, or they may be advised that divorcing in Spain will lead to a more favourable financial outcome. For those expats considering divorce in Spain, it is important to note that financial claims can be made in England after a divorce abroad under Part III Matrimonial and Family Proceedings Act 1984. When choosing to divorce abroad, careful advice should be taken about the potential claims that can be made in other countries, so that the right protective measures can be taken. We work closely with English-speaking Spanish family lawyers, so that you can simply weigh up the pros and cons of divorcing in each country.
Expat divorce law in Spain
Separation and divorce
If you are a British expat living in Spain and you wish to divorce through the Spanish courts, the starting point is to find out if the Spanish courts have jurisdiction for your divorce (i.e will accept your application).
European Regulations confirm that you may be able to divorce in Spain if:
- You and your spouse are habitually resident in Spain.
- Spain was the country where you and your spouse had your last habitual residence, if one of you still live there.
- You are the applicant of the divorce, and your spouse currently lives in Spain.
- If you are the applicant of the divorce and you currently live in Spain, if you have lived there for at least a year, or for at least six months if you have the Spanish nationality.
- In case of joint application, if either you or your spouse are habitually resident in Spain.
Family Law Regimes in Spain
For those expats considering divorce in Spain, it is important to note that in Spain there are different regimes of family law.
There is the common law established by the Civil Code and there are regional specific laws for some of the Autonomous Communities of Spain: Aragón, Balearic Islands, Catalonia, Galicia, Navarra, Basque Country and Valencia.
So, before any other procedure, if you wish to divorce in Spain, your lawyer will determine which law is applied in your specific case, according to the Autonomous Community which you or your spouse are linked to.
This article will consider common law and the specific Catalan law for the dissolution of the marriage.
The matrimonial property regime in Spain
The matrimonial property regime will have a huge impact on the consequences of the dissolution of the marriage.
The regulation on this matter is different in Common Law and Catalan Law.
Common law regulation
In the Common Spanish regulation, the general rule on the financial relationship between a husband and wife is found in the Civil Code, articles 1315 to 1317.
The matrimonial property regime that will be applied to each marriage is the one agreed by the husband and wife in the prenup or marriage contract.
If you and your spouse have agreed a matrimonial property regime or if the marriage contract is void, the Common Spanish Law establishes that the matrimonial property regime will be the community of property (i.e. sharing assets 50-50).
Catalan law regulation
In Catalonia, the general rule on financial relationships between a husband and wife is found in Catalonian Civil Code, article 231-10, matrimonial property regime.
The matrimonial property regime is usually agreed in the prenup or marriage contract. If there is not an agreement or if the marriage contract is void, in Catalonia the property regime is the separation of property.
Spouses are free to choose their matrimonial property regime, but in Catalonia, this option only can be agreed within marriage contracts. These must be prepared as a public deed by a Notary.
Separation and divorce in Spain
There are two types of separation and divorce in Spain:
- Mutual consent: when both parties agree on the dissolution of the marriage, they sign a regulatory agreement which will include details of how assets are to be separated, parental responsibility, children maintenance, spousal maintenance and other financial aspects.
The divorce agreement will be signed and ratified by both parties and approved by the Judge.
- Contentious: when the parties do not reach an agreement, it will be necessary to file a divorce application in the court. It will be the Judge who, after the trial, will determine how assets are to be separated, parental responsibility, maintenance of the children and other financial aspects, according to the petitions submitted by the parties.
Separation of assets on divorce in Spain
Assets will be split according to the type of the marital regime. There are different regulations on this matter in Common Law and under Catalan Law.
Common law regulation: the community of property regime
Using the community of property regime, all gains and benefits that each spouse accumulated before the marriage will become common assets. In addition, all assets that either spouse obtained during the marriage (whether purchased or inherited) will also be included in a common group of assets.
Therefore, on divorce using the community of property regime, each spouse will retain 50% of the common assets.
If a husband and wife cannot reach an agreement on the division of common assets, court proceedings are necessary. An inventory will be produced which includes the total assets and liabilities of the common property.
According to the Civil Code, article 1397, the assets within the inventory will include:
- The common assets at the time of divorce.
- Assets that were wrongly separated from common assets.
- Credit, or realisable value, to one party where joint money or assets paid to another party’s private asset.
According to the Civil Code, article 1398, the liabilities within the inventory should include:
- Pending debts of the community of property.
- The updated value of a) the amount of private assets spent in the interest of the community, b) the depreciation of those assets, if it is because of its usage in the interest of the community, c) the credits to either party where private money or assets paid for joint debts, and d) the amounts paid with private money for joint assets.
Catalan law regulation: the separation of property regime
Under Catalan law, each party to the marriage retains the property held in their own names at the time of divorce.
Either party are free to sell or rent properties they own within the limits set by the law.
In a matrimonial regime of separation of property, if the husband or wife want to share their assets, they must register them in their joint names.
If one party can prove that the asset was purchased with his/her money but registered in the name of their spouse, the Catalonian Civil Code presumes this asset has been donated to that spouse.
The origin of the asset does not have any impact on its ownership.
Parental responsibility, children custody and maintenance
If the husband and wife have a child, after separation or divorce, usually both parents continue to share joint parental authority for their child. There are few exceptions for which the parental authority could be only assigned to one of the parents.
The divorce or separation settlement will also include the type of custody that the parents will have over minors. In Spain, the Common Law and the Catalan Law establish that it can be either a joint custody or a sole custody, depending on what the parties have agreed or on what the Judge has considered according to the circumstances and the interests of the minor.
Depending on the type of custody, there will be a fixed visiting arrangement and contact regime between the parent and their child. This will establish which days each parent will have the child during the week, holidays and weekends.
Also, depending on the type of custody, alimony payments from one parent to the other parent may be established in order to satisfy the needs of the child.
Child support in Spain can be agreed by the parents. Where an agreement cannot be reached by the parents, a rate can be set by the courts. The level of maintenance will depend on the type of custody, the needs of the child and the financial situation of each parent.
Child alimony does not necessarily end when the child reaches the age of 18. Instead, it is payable until the child starts working and has his or her own income and becomes financially independent.
In Spain, the Common Law and the Catalan Law establish that the spouse whose financial situation is more affected because of the breakdown of the relationship has the right during the first matrimonial proceedings to claim compensation. This will not exceed the living standards enjoyed during the marriage or that which is sustainable by the paying spouse.
It can be either a one-off payment or a monthly payment. This compensation payment for the marital breakdown is time-limited, usually three years if paid in monthly installments. The compensation can also be paid in one payment or with assets.
To establish the amount, Spanish courts will consider the financial situation of each spouse, the personal circumstances that can have an impact on their economic situation, the duration of the marriage, and the domestic work by each spouse during the marriage.
Financial compensation for household work
The Civil Code, article 1438, establishes that the care of the household should be seen as a contribution to the marriage. This gives a spouse the right to receive financial compensation when the matrimonial property regime is the separation of property.
In the separation of property regime, the spouse who meets one of the following criteria will have a right to be compensated:
- not worked during the marriage
- worked for the other spouse without pay or was underpaid
- worked part-time to assume childcare and domestic tasks
Financial compensation for household work has two legal requirements according to article 232-5 Catalonian Civil Code:
- The spouse that asks for compensation must have undertaken substantially more household work than the other spouse.
Alternatively, the spouse that asks for the compensation must have worked for the other spouse for free or was underpaid.
- In both cases, there must be a wealth increase by the spouse who has benefited from the work of the other spouse. The highest financial compensation for household work is 25 percent of the wealth increase of the spouse, based on years of marriage, upbringing of children, or care for other family members living with the family.
For advice on Spanish divorce and family laws, please contact Mònica Bardaji Pujadas at Ambes Advocats S.L.P.
Rambla del Celler 15, 1º3ª 08172 Sant Cugat del Vallès – Barcelona
Phone +93 588 53 73