Fundamental Factors in International Divorce

  • Inmaculada
    Inmaculada is a senior partner in her law firm which has assisted individuals and corporations in the Valencia region for over 30 years. From offices in Valencia City and Castellón de la Plana, Inmaculada provides expert legal advice and assistance to English-speakers in Property matters, Contract Breaches/Debt Recovery, Family law and Business formation and bookkeeping service.

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, and
  • 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

Regarding the competent jurisdiction, within the context of the European Union, residency is key and European 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.

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 matrimonial assets, the laws of foreign countries may be applied, though the same must be proven before the Spanish Court.

Client Testimonials

Below is a list of recent reviews received from our clients, obtained via the Wufoo client survey platform:

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    Pernilla, London
    Friday, April 13, 2018
    We had excellent service from Esther at Advocate Abroad when buying a property in Las Palmas, Gran Canaria.

    Esther speaks both Spanish and English, and is very friendly, professional and genuine. ...She took care of the whole purchasing process and explained all the steps for us, including giving advice on Spanish bank account, NIE numbers etc.

    We are very pleased with all the help we have received and can highly recommend Esther. Thank you so much!
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    David Pratt, Alhaurin del Grande
    Friday, April 13, 2018
    Alvaro gives me confidence that he understands the issue and gives me practical solutions. He works rapidly and efficiently. I would strongly recommend his services.
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    ESP, London
    Wednesday, March 28, 2018
    Cristina was extremely helpful, she couldn't have done more. Her English is sufficient and I would definitely recommend her to friend.
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    L Marshall, London
    Wednesday, March 28, 2018
    Rosa was excellent. Very efficient and professional.

    Responsive and always available. Extremely helpful - we did not understand the process and she guided us through.

    We would not hesitate to ...recommend her.
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    Phil Loughton, Las Lagunas de Mijas
    Tuesday, March 20, 2018
    Alvaro was extremely helpful and the simple process I needed managed was dealt with quickly and efficiently. I would certainly recommend him to friends.
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    John Burchell, Arroyo De la Miel
    Tuesday, March 20, 2018
    Alvaro was very professional, helpful and friendly. Understood things quickly. Explained things well in English. Very easy to contact at any time.
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    A. Kavanagh, Glasgow
    Thursday, March 15, 2018
    Miguel provided a great service and fully explained to me about the procedures with tax & business registration. My emails and questions where always answered straight away with an immediate response ...or solution.

    Very helpful and very friendly I would definitely recommend to anyone considering using Advocate Abroad
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    Robert Davies, Mallorca
    Monday, March 12, 2018
    Very supportive and clear on producing a suitable divorce settlement. Efficient, understanding and professional.
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    A.Kavanagh, Glasgow
    Friday, March 09, 2018
    Rosa was exceptional at helping me setting up my business abroad.

    This was a big move for me and Rosa fully explained everything to me in detail so I had a full and clear understanding of the lega...l side of things as well as always promptly responding to any emails or questions I had.

    I couldn’t of asked for a better lawyer and I would 100% recommend Rosa to anyone who is deciding to move abroad.

    Great service could not be happier.
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    Adam Clark, Tenerife
    Friday, March 09, 2018
    Oliver 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.
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    Patrick Martel, Canada
    Wednesday, March 07, 2018
    For being in another country and all our back and forth communicating over emails .. I thought Rosa did a brilliant job. Thankfully she was able to help where no one else was willing ..
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    Robert Scott, UK
    Wednesday, March 07, 2018
    First class service. Rosa's professionalism, advice and patience were all exemplary! Keep up the good work. Will certainly recommend the service to friends!
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    Martina, Plymouth
    Monday, March 05, 2018
    Erardo was fantastic and helped immensely during a very difficult situation.

    He consulted with my lawyer in the UK and explained to her what needed done. Without him the situation would not have be...en resolved. He was very understanding and I would have no hesitation whatsoever in recommending him. Outstanding.
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    M Pearce, Marbella
    Monday, March 05, 2018
    Miguel was extremely helpful, he couldn't have done more:

    Always kept us updated on the progress of our purchase
    Always responded to emails in a professional and timely manner
    Always explained to... our understanding all aspects of the legalities about the purchase
    Very approachable,courteous and professional

    So much better to deal with than UK property lawyers!

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    Tony, London
    Wednesday, February 28, 2018
    The service I received from nada was very helpful.

    The tasks were completed to the highest standard and would definitely use her services again in the future. All correspondence was received in a ...very timely manner. Highly recommended.
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    Holly, Lanzarote
    Friday, February 23, 2018
    The divorce process could have been explained more clearly and accurately so that a more realistic time for completion can be attained.
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    Julia Alcock, Puerto Rico, Gran Canaria
    Thursday, February 22, 2018
    Esther was very friendly and approachable. She was professional and answered any questions I asked. We would definitely use her again in the future.
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    Tamara Malcolm, Mallorca
    Tuesday, February 20, 2018
    Rosa was and is extremely knowledgeable and helpful. Her advice was excellent and i will definitely be using her expertise again in the future.
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    Nick Nicolaou, Oviedo
    Tuesday, February 20, 2018
    Very Satisfied with Miguel's work. He was very helpful and we would definitely use his services again in the future.
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    Gavin Jones, UK
    Monday, February 19, 2018
    It was a real pleasure to have Miguel working on my behalf to file my non-resident taxes. He was extremely helpful, gave reassuring advice and I had a high level of confidence in the transactions.

    ...Miguel is now acting as my fiscal representative in Spain and I plan to continue to use his firm's services for all my tax requirements.
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    Martin Hickey, Benidorm
    Sunday, February 18, 2018
    Very friendly and knowledgeable and professional.

    Juan explained the plus and the negatives on various subjects and allowed us to make up our own mind.

    I have already recommended him to our fri...ends.
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    Andrew Bullen, UK
    Friday, February 16, 2018
    Rosa was very professional at all times when dealing with me. Her English was second to none and she always kept me informed of progress via email promptly.

    I wouldn't hesitate to use Rosa in the ...future for any legal issues I have.
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    Tamara Reeves, Australia
    Thursday, February 15, 2018
    Anna was very knowledgeable and had prior experience dealing with English clients. She spent a lot of time explaining information and I was never rushed.

    I have continued to use Anna since my firs...t meeting as I trust her judgement and know that she will look after my best interests.
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    Ali Hashemi, Alicante
    Wednesday, February 14, 2018
    Rafael was extremely helpful, accommodating and understanding. He couldn't have done more.
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    Alan W T Duguid, Montserrat, Valencia
    Wednesday, February 14, 2018
    Ramon was very helpful and answered my questions and explained the legal process that I was enquiring about.

    I would liked to have seen a follow up email detailing what was discussed to ensure that... my understanding and recollection of the meeting was completely correct.
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    Keith Round, La Herradura, Spain
    Monday, February 12, 2018
    The advice provided was clear, easy to follow and allowed me to secure the required documentation from the Spanish Authorities quickly.

    Rosa was very proactive in following up when I was delayed in... providing inputs and always delay with any questions promptly.

    I would not hesitate to recommend Rosa to friends and colleagues and I would use her again in the future
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    GWE, Ireland
    Thursday, February 08, 2018
    My lawyer Nada was extremely effective to make the case and get a result!
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    Chris Jones, Cambrils
    Tuesday, February 06, 2018
    Regardless of the situation Emma, looked for the best possible way to assist under the circumstances. Emma was very approachable and professional.
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    Richard Quick, Estepona
    Sunday, February 04, 2018
    I was particularly impressed by Miguel's approachability & professionalism, excellent service!
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    Stephen Grundy, Alicante
    Thursday, February 01, 2018
    Jose-Antonio's services are exemplary. Very satisfied and would definitely use this lawyer again.

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