The Interaction Between English Law and Spanish Law

Many foreign nationals are surprised to learn the extent to which their 'National Law' applies to them in Spain. This is not a new phenomenon brought about by the harmonisation of European laws, or by the fact that ultimate sovereignty now rests with the European Parliament. For example, it has always been the case that an English person makes their Spanish Will in accordance with English law and it is therefore essential to understand English law in order to fully advise the person making the Will. I have set out below a few areas where this interaction is likely to be most relevant.

Divorce

A couple married in England who now wish to divorce in Spain will need to know what English divorce law says in order to progress the divorce through the Spanish courts. The procedure will be Spanish but the governing law will be that of England & Wales. There is only one ground for divorce, that being that the marriage has broken down irretrievably, and the petitioning party must elect one of the five grounds for divorce such as 'unreasonable behaviour' or adultery. The Spanish judge may well choose not to interpret the law in the same way that an English one would, but it is nevertheless essential to understand what English law says about the matter.

Wills

As mentioned above, an English person makes their Spanish Will in accordance with English law, and is not obliged to follow the rules concerning forced heirs which apply to Spanish nationals. This means therefore that the English person is free to leave their assets to whoever they wish, provided that they make adequate provision for anyone who is dependent upon them (again in accordance with English law).

Property

I have come across a number of situations where a couple wishes to gift money to their children and purchase their Spanish property in the names of the children. The aim is to avoid UK inheritance tax (as well as Spanish inheritance tax) by surviving the date of the gift by seven years. The risk (apart from that of the children disposing of the property during the lifetime of the 'owners' (in the absence of a 'usufructo' being granted), is that the UK Inland Revenue get wind and determine that there has been a 'Reservation of Benefit' by the couple thereby annulling any UK tax benefit.

Information is shared increasingly frequently between states these days and this is only going to increase. Understanding both Spanish and English law will therefore become more and more important in the years to come.

I trust the above is clear although please feel free to give me a call at any time on +34 966-426-185 if you wish to discuss the above or any other issues.

Marc White LL.B. (English Solicitor) C/Diana 19, 2ºD, 03700 Dénia (located at the Glorieta Square end of Marques de Campo)

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