As part of our International Divorce series, Spanish divorce lawyer Mónica Bardaji Pujadas gives insight on how to divorce in Spain.
Separation and Divorce
If you are a Scottish person living in Spain and you wish to divorce through the Spanish courts, the starting point is to find out if the Spanish courts have jurisdiction for your divorce (i.e will accept your application).
European Regulations confirm that you may be able to divorce in Spain if:
1. You and your spouse are habitually resident in Spain; or
2. Spain was the country where you and your spouse had your last habitual residence, if one of you still live there; or
3. You are the applicant of the divorce and your spouse currently lives in Spain; or
4. If you are the applicant of the divorce and you currently live in Spain, if you have lived there for at least a year, or for at least six months if you have the Spanish nationality or a national of the Member State of UE; or
5. In case of joint application, if either you or your spouse are habitually resident in Spain.
In terms of UE regulations habitual residence is the place where the interested party has established the permanent or usual center of his interests with character of stability. In Spain, Family Courts require divorce applications to attach the spouse registration in the Town Hall. .
Several family laws in Spain
For those Scottish or expats considering divorce in Spain, it is important to note that in Spain there are different regimes of family law.
There is one common law established by the Civil Code and there are six regional specific laws for some of the Autonomous Communities of Spain: Aragón, Balearic Islands, Catalonia, Galicia, Navarra, Basque Country.
So, before any other procedure, if you wish to divorce in Spain, your family lawyer will determine which law is applied in your specific case, according to the Autonomous Community which you or your spouse are linked to.
This article will consider common law and the specific Catalan law for the dissolution of the marriage.
All Autonomous Communities have partnership laws, with civil effects or just tax effects.
The Matrimonial Property Regime in Spain
The matrimonial property regime will have a huge impact on the consequences of the dissolution of the marriage.
The regulation on this matter is different in Common Law and Catalan Law.
Common law regulation:
In the Common Spanish regulation, the general rule on the financial relationship between a husband and wife is found in the Civil Code, articles 1315 to 1317.
The matrimonial property regime that will be applied to each marriage is the one agreed by the husband and wife in the prenup or marriage contract.
If you and your spouse have agreed a matrimonial property regime or if the marriage contract is void, the Common Spanish Law establishes that the matrimonial property regime will be the community of property (i.e sharing assets 50-50).
Catalan law regulation:
In Catalonia, the general rule on financial relationships between a husband and wife is found in Catalonian Civil Code, article 231-10, matrimonial property regime.
The matrimonial property regime is usually agreed in the prenup or marriage contract. If there is not an agreement or if the marriage contract is void, in Catalonia the property regime is the separation of property.
Spouses are free to choose their matrimonial property regime, but in Catalonia, this option only can be agreed within marriage contracts. These must be prepared as a public deed by a Notary.
Separation and divorce in Spain
There are two types of separation and divorce in Spain:
1. Mutual consent: when both parties agree on the dissolution of the marriage, they sign a regulatory agreement which will include details of how assets are to be separated, parental responsibility, children maintenance, spousal maintenance and other financial aspects.
The divorce agreement will be signed and ratified by both parties and approved by the Judge.
2. Contentious: when the parties do not reach an agreement, it will be necessary to file a divorce application in the court. It will be the Judge who, after the trial, will determine how assets are to be separated, parental responsibility, maintenance of the children and other financial aspects, according to the petitions submitted by the parties.
Separation of assets on divorce in Spain
Assets will be split according to the type of the marital regime. There are different regulations on this matter in Common Law and under Catalan Law.
Common law regulation: the community of property regime
Using the community of property regime, all gains and benefits that each spouse accumulated before the marriage will become common assets. In addition, all assets that either spouse obtained during the marriage (whether purchased or inherited) will also be included in a common group of assets.
Therefore, on divorce using the community of property regime, each spouse will retain 50% of the common assets.
If a husband and wife cannot reach an agreement on the division of common assets, court proceedings are necessary. An inventory will be produced which includes the total assets and liabilities of the common property.
According to the Civil Code, article 1397, the assets within the inventory will include:
- The common assets at the time of divorce.
- Assets that were wrongly separated from common assets.
- The realizable value of the amounts paid by the community of property that were in charge of only one of the spouses and, in general, the ones that represent a credit of the community toward him/her.
According to the Civil Code, article 1398, the liabilities within the inventory should include:
- Pending debts of the community of property.
- The realizable value of: a) the amount of the privative assets spent in the interest of the community, b) the impairment of those assets, if it was produced by its usage in the interest of the community, c) the credits of the spouses against the community of property, and d) the amounts paid with private money for common assets.
Catalan law regulation: the separation of property regime
Under Catalan law, each party to the marriage retains the property held in their own names at the time of divorce.
Either party are free to sell or rent properties they own within the limits set by the law.
In a matrimonial regime of separation of property, if the husband or wife want to share their assets, they must register them in their joint names.
If one party can prove that the asset was purchased with his/her money but registered in the name of their spouse, the Catalonian Civil Code presumes this asset has been donated to that spouse.
The origin of the asset does not have any impact on its ownership.
Parental responsibility, children custody and maintenance
If the husband and wife have a child, after separation or divorce, usually both parents continue to share joint parental authority for their children. There are few exceptions for which the parental authority could be only assigned to one of the parents.
The divorce or separation settlement will also include the type of custody that the parents will have over the minors. In Spain, the Common Law and the Catalan Law establish that it can be either a joint custody or a sole custody, depending on what the parties have agreed or on what the Judge has considered according to the circumstances and the interests of the minor.
Depending on the type of custody, there will be a fixed visiting arrangement and contact regime between the parent and their children. This will establish which days each parent will have the children with him/her during the week, holidays and weekends.
Also depending on the kind of custody, Alimony payments from one parent to the other may be established in order to satisfy the needs of the children.
Child support in Spain can either be agreed by the parents or, if an agreement cannot be reached, a rate can be set by the courts. The level of maintenance will depend on the type of custody, the needs of the children and the economic situation of each parent.
Child alimony does not necessarily end when the child reaches the age of 18. Instead, it is payable until the child starts working and has his or her own income and becomes financial independent.
In Spain, the application divorce includes in the same form: spouse maintenance, custody, child maintenance, parental responsibility, matrimonial regime and division of assets.