Spanish Divorce Law

English divorce law can be quite different to Spanish divorce law with regard to maintenance or alimony provision, but which law applies?

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 divorce 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.

Applicable Law

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.

 

Cost

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  consideration of international divorce for UK citizens.

Related Services

31 Lawyers Offering Divorce Services in Spain

Testimonials for our Divorce service
  • Bailey Marks
    Bailey Marks, Jaen

    Alvaro was the best choice of a lawyer I could have made. He was thorough and his experience was evident during the entire custody process.


    He was always available to answer my concerns and made me feel secure with each step of the legal process, and we achieved a better result than I expected.


    Dec 04, 2020
  • Maja Alberte Bache
    Maja Alberte Bache, Almeria

    I can fully recommend Alvaro - he patiently explained the procedures - and trustfully led us through it as well ulfilled the case in the best possible way. Thanks


    Sep 09, 2020
  • Stephen Harris
    Stephen Harris, Fuengirola

    My solicitor here in Spain did get me a divorce as requested and tried his best to get it recognized in the U.K. unfortunately this has proved impossible. My solicitor here probably not aware of the difficulty at that time but did his utmost best.


    May 14, 2020
  • Havin Omed
    Havin Omed, Madrid

    I was satisfied with all of services above. Especially his responses so good.


    Jan 17, 2020
  • Michelle
    Michelle, Murcia

    I’m very happy with the way Maria dealt with everything,I would definitely contact Maria if I ever needed her services again 😃


    Nov 27, 2019
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco and Carmen did a great job handling my divorce. In this difficult time for me, they handled the issues with understanding and flexibility.


    Francisco was very good in court and he could defend well against all the challenges made to the pre-nuptial contract my husband and I signed, so that it was upheld in full.


    Sep 29, 2019
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco was extremely helpful, he couldn't have done more.


    Sep 07, 2019
  • Tina Shiels
    Tina Shiels, Fuengirola

    Alvaro was very helpful and went above and beyond to try to help me in my situation as I needed it to happen as fast as possible.


    Even whilst he was on holiday he was in touch and made things happen. would definitely recommend!


    Sep 06, 2019
  • Robert Cunningham
    Robert Cunningham, Mallorca

    Rosa was absolutely first class. She made a very difficult time in our lives a lot easier and for that I could not be more grateful. Thank you Rosa


    May 20, 2019
  • Wayne
    Wayne, Valencia

    Francisca was very informative and helpful. She handled my divorce professionally and made it easy for me throughout the process.


    Highly recommend and reasonable fees. Thank you, Francisca!


    Mar 16, 2019
  • Wayne Cherry
    Wayne Cherry, London, England

    Francisca was very informative and attentive to all of my inquiries and concerns. I would definitely be going back to her if needing her services again and would recommend her brilliant services.


    Mar 09, 2019
  • Candy
    Candy, Cadiz

    Francisco was very responsive, supportive and understanding.


    Unfortunately, I had to use another lawyer who has helped me in another case.


    Feb 11, 2019
  • Colin Wilson
    Colin Wilson, Australia

    Overall it was great. Rosa always answered all questions asked and provided clear, concise and well explained answers.


    When there was a delay in responding she did offer an apology which was appreciated. Rosa always instilled a sense of confidence that she knew exactly what was going on, what I was asking, and what the applicable law was.


    When not a Spanish local and dealing with her remotely, this provided great comfort in a sensitive matter.


    Oct 30, 2018
  • Robert Davies
    Robert Davies, Mallorca

    Very supportive and clear on producing a suitable divorce settlement.


    Efficient, understanding and professional.


    Mar 12, 2018
  • Stanley Jones
    Stanley Jones, Llano del Camello

    I am very satisfied with Oliver, he was very helpful and always happy to assist.


    I would definitely use the same lawyer again in the future.


    Jan 17, 2017
  • CW
    CW, Ibiza

    Very knowledgeable and supportive from the outset.


    Made to feel very comfortable and nothing was too much trouble. Very highly recommended.


    Nov 22, 2016
  • Michael Anthony
    Michael Anthony, Malaysia

    I found Francisco to be very understanding of my needs and was able to discuss frankly with him on sensitive and personal matters.


    I found Francisco to be extremely professional, helpful, knowledgeable and importantly very approachable. I would certainly recommend him to anyone who needed such services and I would certainly use him and his law firm again if the need arose.


    Aug 19, 2016
  • Kate Godbehere
    Kate Godbehere, Granada

    From 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.


    Feb 25, 2016