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International Divorce fundamental factors

Nowadays in Spain it is ever more common that at least one person in a relationship is not Spanish or very possibly that neither are Spanish but are living as full-time residents here in Spain, having married abroad. As a result, when considering the difficult and complex situations that arise with separations and divorces, either between married couples or those in domestic partnerships it is necessary to bear in mind three fundamental factors:

  • Which jurisdiction will be competent to hear the matter.
  • Which state’s legislation will apply to the proceedings.
  • With regard to the distribution of the matrimonial assets, what is the legal framework that underpins the ownership of those assets within the marriage.

Residency is Key in the event of International Divorce

Regarding the competent jurisdiction, within the context of the European Union, residency is key and European International Divorce Council Regulation 2201/2003, with respect to jurisdictional competence, recognition and enforcement of judicial decisions in matrimonial matters and parental responsibility, establishes that competence to hear divorce and similar proceedings lies with the State in which the spouses habitually reside, with some special individual rules for exceptional cases.

When there are children involved in the proceedings, the Spanish Courts will also have competence to hear the case, when the child has close ties to Spain, even where at the time that the proceedings are filed, the child is resident in a State, outside the European Union.

Spanish Civil Code

With regard to the applicable legislation to the proceedings, in Spain, Article 107 of the Spanish Civil Code establishes the following options in order of priority:

  1. the national law common to both spouses
  2. the national law of the country where the marriage was celebrated
  3. the law of the country in which the couple were both last resident, where one of the spouses is still resident there.

Finally, with regard to the financial rules applied to the distribution of the matrimonial assets, within the context of the European Union, Article 9.2 of the Spanish Civil Code as well as the Hague Convention of 1978, applicable to marriages celebrated after September 1978, establish that, in the first place, the rules that determine the distribution of assets shall be any such as the couple have expressly agreed, (pre- and post-nuptial agreements) and in their absence, those rules which are applied in the region that the couple habitually were resident in immediately following the marriage or, if this does not apply, the law of the place in which the marriage took place.

Regional Law

In Valencia, in the absence of an express agreement between the spouses, the financial rules that apply are known as ‘separación de bienes’ which means that the spouses keep their own individual assets and earnings.

In summary, the Spanish Courts will normally have competence to hear divorce and separation proceedings between anyone resident in Spain, regardless of the nationality of the spouses, applying the law of the State of which both spouses hold nationality, and if the spouses have different nationality, Spanish law will apply.

Finally, with regard to the distribution of distribution of matrimonial assets, the laws of foreign countries may be applied, though the same must be proven before the Spanish Court.

You may be interested in the following service...

"At every stage of our family case, our lawyer has been knowledgeable and thorough, very professional while remaining kind and supportive and ensured that we took the right steps for a positive outcome!"

Marion Brennan, Alicante (Jun 29, 2019)

Divorce

Available in the following locations: Alicante, Arrecife, Barcelona, Benidorm, Cadiz, Castellon, El Campello, Estepona, Fuengirola, Gandia, Girona, Granada, Jaen, L`Eliana, La Manga del Mar Menor, Las Palmas, Los Alcázares, Los Cristianos, Madrid, Maspalomas, Mazarron, Murcia, Nerja, Orihuela Costa, Oviedo, Palma de Mallorca, Puerto del Rosario, Puzol, Seville, Torrevieja, Valencia, Velez Malaga, Vera, Vigo, Zaragoza.

* If your local town is not listed, a lawyer from our nearest office will be happy to assist you.

1Who is this Service for?

For anyone who wishes to initiate, or who needs to respond to, divorce proceedings or other family law proceedings including separation and annulment.

2What does this service consist of?

  • Initial discussion with a specialist lawyer to understand the current position and options for next steps
  • If initiating divorce proceedings, possibility to refer case to an Advocate Abroad solicitor registered by the Law Societies in the UK to provide consultation on whether divorce proceedings may take place in the UK
  • If proceedings in UK not possible or desired, filing of the divorce petition to the local Courts or formal legal response if responding to a petition for divorce in the local Courts
  • Certificate of English law arranged if applying English-law to the foreign divorce proceedings
  • Negotiation of all terms of the divorce settlement
  • Drafting/Review of the divorce agreement
  • Division and distribution of Matrimonial Assets

3Free Support Services Included

When combined with the free and innovative Advocate Abroad support services you can be sure that you are obtaining completely transparent legal services from registered and regulated English-speaking lawyers abroad.These support services include:

  • Verification of the regulatory status of your professional.
  • Fees as recommended by the Local Professional Body
  • Fees specified in advance and legally guaranteed.
  • Service levels agreed in advance and guaranteed.
  • All professionals must hold professional indemnity insurance.
  • Professionals' proficiency in English monitored.
  • Continuous quality controls and reviews.

Why choose Advocate Abroad?

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