Overview article about divorce in Spain, expert advise answering questions that English-speakers have about divorce and Family Law in Spain.
What you need to know about divorce in Spain – Introduction
Below you will find answers to some of the most common questions regarding divorce in Spain.
Of course, family law is a very broad topic as it impacts on many of the most important personal and financial relationships that people tend to have.
Of particular interest to many visitors to the website is the ‘international’ aspect to such matters.
An attempt has therefore been made to provide information in this light, though there can be no replacement for obtaining advice from a professional practising in this field of Family Law.
If at any point you feel the need to speak to a professional, just contact Advocate Abroad by phone, email or instant chat.
What is Divorce and what is it’s effect in Spain?
In technical terms, divorce in Spain is one of the legitimate methods by which a legally valid marriage may be ended. In Spain there is no requirement to allege any cause or reason, though there must be a judicial decree and the marriage must have lasted no less than three months before proceedings were initiated.
The main effects of a divorce in Spain are that, by bringing the marriage to an end, any joint financial liabilities of the couple as against third parties are terminated while also noteworthy is the end to the right to inherit the assets of an ex-spouse upon their death.
Who may request a divorce in Spain and how does this affect proceedings?
Both of the spouses may request divorce proceedings together, in which case it is known as a divorce by ‘mutual accord’ (more commonly as an Express Divorce).
Alternatively, one of the spouses alone may request a dissolution of the marriage, in which case it is known as a ‘contentious’ divorce.
The main difference here is one of expense and time.
Failure to agree on the divorce agreement in particular may require negotiation and communication between the lawyers and production of third party evidence. A divorce by mutual accord can be concluded in as little as a few weeks whereas a contentious divorce may last anywhere from a few months to more than a year.
It is therefore of course always preferable to follow the course of divorce by ‘mutual accord’ wherever possible.
If either of the spouses is not Spanish, how does this affect divorce proceedings?
By virtue of European Regulation 2201/2003, a Spanish court may adjudicate divorce proceedings involving anyone resident in Spain. Accordingly, where at least one spouse is habitually resident in Spain, the Spanish courts may hear the case.
As far as the applicable law, Articles 9.2 and 107 of the Spanish Civil Code establish that the applicable law is, in the first place, the law of the country of which both spouses are nationals.
Where there is no common nationality, the applicable law is the law of the state in which both are habitually resident at the time of divorce.
Accordingly, a married couple composed of a Spanish woman and a British man would have the Spanish law of divorce applied where both are resident in Spain.
Meanwhile an Irish couple who apply for a divorce in Spain may have Irish law applied or request to have Spanish law applied should they wish.
Where there is neither common nationality nor country of common residence, the law of the state in which the couple were last both habitually resident is applied.
Is it necessary to travel to Spain for divorce proceedings to be concluded?
No. It is of course necessary for the parties to communicate and a number of forms and documents need to be signed, but this can be managed by post.
Ratification of the divorce agreement before the judge normally requires the presence of both spouses.
That said, if one or both of the spouses is no longer living in Spain, this can be accomplished by issuing a power of attorney in favour of the procurador. This power needs to be specially arranged.
What happens with regard to custody of children following divorce in Spain?
The following process applies regardless of whether the parents of the children are unmarried or married.
The parents can agree via a ‘convenio’ or written agreement on issues such as child custody and visitation rights.
A judge will review any agreement and adjust as required, taking into account the best interests of the children.
A judge may make an order awarding custody to one of the parents, or to both in an order of ‘joint custody’.
In most regions of Spain it is normal to award custody to one of the parents, typically the mother. However in some regions it is now law that the judge must consider the awarding of ‘joint custody’.
More information about the standard rules in your area of Spain can be found in the section ‘Family Law by Region’ on the left hand side of this page.
For more information see Child Custody In Spain.
May a parent take a child to another country following a divorce in Spain?
If a parent is awarded sole custody of the children then whether or not the children can be taken to live in another country may have to be decided by a court if the non-custodial parent is not in agreement with the move.
This is because the non-custodial parent retains the right to visitation which would be seriously eroded in the case of the children moving to another country.
If a judge decides that the move is in the best interests of the children and that there is sufficient family support in the planned destination then it can be approved.
In such a case it is likely that provisions would need to be made to maintain contact with the non-custodial parent during holidays etc.
What is the Spanish law relating to child maintenance?
Whether or not the parents of a child are married there is a legal responsibility to provide for the child before and after any divorce, separation or break-up between the parents.
Child maintenance covers such basic matters as accommodation, feeding, clothing and education.
A divorce agreement will contain details of any maintenance provision that is to be made by the parents.
This is because even though both parents are equally responsible to provide for their children they may not both have the same resources.
In the absence of any such agreement a court will determine the responsibilities of each parent to provide for the children and to do so regard shall be had to the income of both parents as well as liabilities.
Failure to comply with child maintenance payments can result in fines as well as the embargo of income and possessions.
A civil action for compliance should be filed in the court where the original order was made.
Should a parent be unable to comply with the decree of the court due to a substantial change in circumstances, they should request an order amending the agreement such that the amounts due to be paid may be lowered.
What happens to the family home following a divorce in Spain?
In the absence of children or any express agreement between the spouses, the home shall be retained by the original owner. If the property is jointly owned then typically the property is sold and the proceeds shared or one spouse pays the other to take the entire property.
Where there are children and custody has been awarded to one parent only then use and enjoyment of the family home will be awarded to that parent until such time as the children become emancipated.
The order relates to use and enjoyment and not ownership. When appropriate the home may be sold and the proceeds shared.
Who is responsible for the mortgage and household bills after a divorce?
Responsibility for payment of any household bills usually belongs to the spouse who has use of the property though the contrary may be specified in any divorce agreement or ‘convenio’.
With regard to a mortgage, as far as the financial institution is concerned, liability continues and so the owner of the property must continue to discharge the mortgage to avoid losing the property.
Where both of the spouses were jointly liable for the mortgage this therefore continues to be the case and the non-custodial spouse must continue to pay their portion of the mortgage though they do not personally use the property.
The need to pay for accommodation elsewhere while paying towards the mortgage of the marital home should be reflected when calculating the child maintenance or alimony liability.
Should the spouse who has retained the use and enjoyment of a jointly-owned property start cohabiting with a new partner, it will be open to the ex-spouse to request an order from the court adjusting the original agreement due to a substantial change in circumstances.
When is alimony awarded in Spain?
A Spanish court will make an award of maintenance or alimony from one to the benefit of the other only where an economic imbalance has been created as a result of the divorce.
Relevant factors include dedication past and future to the children, age of the spouses, duration of the marriage, education and likelihood to gain employment, assistance given to the other spouse in their professional activity and any other relevant factor.
So, for example, where a spouse has dedicated many years to raising the children, at the expense of pursuing a career while assisting the other spouse in their profession a divorce may well lead to an economic imbalance and alimony awarded – especially where there is little prospect of gaining new employment.
Alimony may be awarded indefinitely or temporarily or as a lump sum.
How might a new relationship affect alimony and child maintenance?
Where a person receiving alimony payments remarries or lives with another person in a matrimonial relationship the cause that gave rise to the alimony ceases as does the right to receive alimony payments. It is not necessary that there is cohabitation but that there is a sentimental relationship.
The fact that the custodial parent enters into a relationship with a person other than the non-custodial parent does not affect the responsibility that the non-custodial parent has towards the children.
What rights and responsibilities do unmarried spouses have?
A distinction should be made between those purely ‘economic’ matters and those which have to do with child custody and maintenance or visitation rights which impact on public order and are consequently handled differently.
Most regions recognize the ability of the couple to agree as to the economic impact of any future separation though some regions insist that the agreement be made in public and witnessed by a notary in order for them to have any effect.
In the absence of an agreement the courts tend to impute a desire to remain economically independent and that there should be no continuing economic liability as between the couple, once separated. General principles of law apply such that one should not be unjustly enriched at the expense of another which may impact on the distribution of common assets.
Regarding matters such as child custody, visitation rights, use of the shared home and payment of child maintenance the courts have tended to replicate the law applicable to married couples.
Such matters can be agreed by mutual accord and if not, a petition may be made to the court for an order ‘de medidas paterno-filiales’ such that the court make a direction in respect of those issues.