Spanish Divorce Law
More and more often the subject of divorce in Spain arises where there are spouses from different countries. This throws up the possibility of other states’ laws becoming relevant to the situation. So while Spanish law is applicable, it does not operate in a vacuum and we must consider the laws of other states also.
In fact this can be a critical issue as the question of which laws apply in each legal jurisdiction in international divorce cases can greatly affect the divorce settlement that is reached.
For example, English divorce law can be quite different to Spanish law with regard to maintenance or alimony provision. And while a couple who have habitually resided in Spain during the course of their marriage could be expected to have Spanish law applied, this is not always the case.
It is therefore important to address at the outset the rules on which country has jurisdiction to process a divorce application involving spouses of different nationalities or who are resident in different countries.
Which Legislation Applies
European Regulation 2201/2003 sets out the rules that determine which country has jurisdiction to hear and determine a divorce case which is any country where:
- The spouses are habitually resident, or
- The spouses were last habitually resident, and one still resides there, or
- The respondent is habitually resident, or
- In the event of a joint application, either of the spouses is habitually resident, or
- The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- The applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her “domicile” there, or
- Both spouses are domiciled
As can be seen from the rules above, a divorce petition may be considered to be filed correctly in more than one jurisdiction.
Where a petition for divorce is petitioned in more than one country then the ‘first-past-the-post’ principle applies which has of course permitted the practice of “forum shopping” to flourish. Forum shopping is where a spouse will seek to file for divorce in the jurisdiction that offers them more advantageous laws than their partner.
Family Law Client Testimonials
Client reviews of our family law services, as uploaded by clients directly to the Wufoo survey platform:
- Wendy Dickson, MarbellaTuesday, June 19, 2018It was all done very quick. Very good value for money. How easy it all was to communicate via email.
- Liezl Pulido, PhilippinesMonday, April 23, 2018Rosa never stopped working very hard, she went way above what she needed to do...she never gave up on me and always did more than I thought anyone would.
I am so blessed I got Rosa to help me I co...uldn't have gotten a better lawyer she's the best.
Thank you Rosa from the bottom of my heart you are a wonderful person, I am so grateful to you.
- Julie Smith, TorrellanoFriday, April 20, 2018I can't compliment my solicitor enough.
From our initial meeting right through to my ultimate divorce (with no unpleasant surprises the entire duration of the entire process), he immediately respo...nded to my many enquiries, always had mine and my daughter's best interests at the forefront of any considerations and was well worth every penny of his extremely reasonable fee.
Excellent value for money, totally approachable and very professional and understanding. I highly recommend him and will continue to retain his services for other matters in the future.
- David Pratt, Alhaurin del GrandeFriday, April 13, 2018Alvaro gives me confidence that he understands the issue and gives me practical solutions. He works rapidly and efficiently. I would strongly recommend his services.
- John Burchell, Arroyo De la MielTuesday, March 20, 2018Alvaro was very professional, helpful and friendly. Understood things quickly. Explained things well in English. Very easy to contact at any time.
- Robert Davies, MallorcaMonday, March 12, 2018Very supportive and clear on producing a suitable divorce settlement. Efficient, understanding and professional.
- Adam Clark, TenerifeFriday, March 09, 2018Oliver was very professional. He explained things very clearly and honestly at all times and in the end we got the best result possible in my particular case.
Many thanks to him for his high level ...of service.
- Holly, LanzaroteFriday, February 23, 2018The divorce process could have been explained more clearly and accurately so that a more realistic time for completion can be attained.
- Tamara Malcolm, MallorcaTuesday, February 20, 2018Rosa was and is extremely knowledgeable and helpful. Her advice was excellent and i will definitely be using her expertise again in the future.
- Eric Van Der Straeten, BelgiumFriday, November 17, 2017Mr. Sempere Gelardo was a pleasure to work with. This lawyer has an understanding of difficult matters that surpasses most of his colleagues.
He replied to my demand the next day and in fluent Engl...ish assisted me in the case I presented to him.
His professionalism, together with a lot of empathy, gave me a feeling of security. The results were of the same high standard.
I can only thank him and would recommend him to anybody who is in need of legal assistance in the region of Alicante.
- S Smith, EsteponaTuesday, September 12, 2017Being English in Spain and fighting a child custody and divorce case here is extremely difficult.
I originally had an only Spanish speaking lawyer and after 2 years of everything taking ages inclu...ding just responses from my lawyer plus with the language barrier I decided to make the difficult decision to change my lawyer to Alvaro.
Immediately and quickly Alvaro got an understanding of the case and was able to advise me. I was now able to understand myself what was going on and he worked to a new pace that had previously been lacking and that was needed to win the case.
Communication and response from Alvaro was always immediate and his recommendations were always correct. He is very professional and approachable person, and a very good lawyer. With his help and guidance I won the case and without any hesitation I would highly recommend Alvaro as a lawyer to anyone.
- Aaron L, OregonWednesday, August 02, 2017Very satisfied with the service provided. Helen was knowledgeable, helpful and responsive to communication. Will definitely use again.
- Maya M, CanadaMonday, July 31, 2017My overall experience with Rosa was a positive one.
Value for the money? Yes.
In my opinion, Rosa is a very knowledgeable and professional lawyer, who is able to not only understand the situat...ion at hand, but also suggest different approaches and customized solutions for unique, non-standard situations, which was the case with me.
And for that I am really happy and grateful to have worked with Rosa, and wish her the very best in the future.
- N. Gardiner, MijasFriday, June 16, 2017Rosa was value for money, really easy to deal and very efficient. Highly recommend.
- D slocombe, SpainFriday, May 19, 2017Jose is very friendly and understanding. I am very satisfied and I would you use the same lawyer again in the future.
- KSC, IrelandTuesday, October 18, 2016She was very helpful, always happy to assist. I was very satisfied with the service.
- Elena, AustraliaTuesday, June 14, 2016Rosa was straightforward, friendly, polite and cheap. I was very satisfied and I definitely would use the same lawyer again in the future.
- Kate Godbehere, GranadaThursday, February 25, 2016From the outset, Rosa was extremely professional, approachable, efficient and competent. Her level of English is extraordinary, something very much appreciated as it made life easier for me during an ...inherently difficult time.
Her correspondence was always relevant, detailed, simply and clearly explained and expressed. Rosa was kindly, matter of fact, calm, patient and always reassuring.
Her pro-active, intelligent, thoughtful and knowledgeable advice helped very much during a particularly delicate and worrying stage of the process.
- Peter Gural, La LineaThursday, October 08, 2015What I liked about this service: Value for money.
The level of professionalism and excellence in service was not compromised in the reasonably low fee charged for the service.
All details were... explained in a simple format that an ordinary citizen could understand, sparing the bureaucratic procedure that only lawyers can understand.
- Elena Todd, AlmoradiFriday, July 18, 2014Our lawyer was very understanding of our situation, and took a lot of time to strategise for the best possible outcome.
Her passionate performance in court exhibited a heartfelt commitment to our ...case.
Her fees were very reasonable and she was willing to consider payment terms at difficult times.
I strongly recommend her and will use her again in the future.
- Christine B., SpainThursday, July 03, 2014Very fast and comprehensive responses to all my queries.
Always available via email and telephone.
Very reasonable fees.Extremely helpful and thorough. Polite, perfect English. Absolutely prof...essional.
While the question of legal jurisdiction is important, also of great importance is the question of which legal system or code of laws applies to the case before the court, regardless of the location of that court.
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 may apply for a divorce in Spain and have Irish law applied or request to have Spanish law applied should they wish.
Where between the spouses there is neither a common nationality nor a country of common residence, the law of the state in which the couple were last both habitually resident is applied.
It is worth noting that the application of foreign laws in a Spanish court would increase the cost and complexity of any hearing as the court would require depositions on the current state of the foreign law which would have to be provided by experts in that foreign law and which in turn would need to be translated and presented to the court.
So what are the practical implications of succeeding in having a divorce petition heard in one jurisdiction rather than another? Well, this rather depends on which jurisdictions we are comparing. For those interested, there is also a brief comparison of UK and Spanish laws.