What are the practical implications of succeeding in having a divorce petition heard in one jurisdiction rather than another?
Well, of course this rather depends on which jurisdictions we are comparing. Here we take a very brief look some major variations on how the law operates with regard to divorce proceedings in the UK and Spain.
In Spain distinctions are made between different ‘types’ or regimes of marriage which have different financial ramifications in the event of a divorce. First are those marriages referred to as being subject to a ‘sociedad de gananciales’ which most equates to what we would consider typical in Anglo-Saxon marriage arrangements.
Secondly there are ‘separación de bienes’ which signifies an intention on the part of the spouses to maintain a separation in the ownership of assets throughout the marriage.
The effect of the above is that in a ‘sociedad de gananciales’ matrimonial arrangement, all goods, assets and benefits (except so-called ‘private’ goods) derived during the marriage, regardless by which spouse, are considered to belong to both spouses equally and which are, upon a divorce, divided equally.
Examples of such ‘goods, assets and benefits’ would be a person’s salary or benefits of a business owned by one of the spouses.
Conversely where the regime is considered to be ‘separación de bienes’ then any assets accumulated during the marriage are considered to belong to one or other of the spouses in the proportion in which their funds contributed to the purchase.
It may be added that domestic labour in the home is considered quantifiable under this arrangement and can therefore be used to measure contribution towards marital assets.
Even within the ‘sociedad de gananciales’ regime certain assets are considered ‘private’ and would not be considered as divisible between the spouses upon a divorce.
An example would be an inheritance left to one of the spouses specifically. Also, any assets obtained before the marriage remain distinct from the matrimonial ‘pot’ and never form part of the matrimonial assets.
So, when comparing the UK system with the ‘sociedad de gananciales’ it would appear that the Spanish system would have a narrower interpretation of what constitutes ‘marital assets’ as it allows for ‘private assets’
The system of ‘separación de bienes’ provides an even narrower interpretation by assigning ownership of assets to one spouse or the other depending on contribution, though there is the proviso that the contribution of a spouse who works in the home can consider this a contribution to be compensated for.