British couple resident in Spain seeking a divorce. Is it difficult to apply for a divorce? Is it better to get divorced in Spain or in the UK? Would Spanish Law apply or English Family Law?

Consultation:

Dear Sirs,
I want to get divorced from my husband, we are British, and we have lived in Spain for the last nine years. We have a house together, which was paid for mostly by myself. So far we both have small jobs which we have not declared.
Could we get a divorce in Spain, is it difficult, what we should do? What are my rights?.

Dear reader, thank you for your enquiry.

You should be aware of the adoption and entry into force of the COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, regarding the causes or reasons to get divorce. It would apply in your case, and as long as you did not choose another law, for the grounds of divorce, the law of the country where you have common residency applies , in your case, Spain and Spanish law.

This is a good thing, as it means a simplification of the process with respect to English legislation, since the Matrimonial Causes Act 1973 requires in order to get divorced, one must prove to the court that the marriage is irretrievably broken, which should be proven by the following grounds: adultery, unreasonable behaviour, separation during 5 years, two years separation with consent to the divorce, etc.

In your case, if you are both resident in Spain, as said, Spanish Law will apply, and get divorce would be much easier, because as per Spanish Family Law there is no need to prove grounds or give any reason, it being enough simply to be married more than three months in order to file for divorce, or start a divorce process.

However, for the economic and property consequences of the divorce ( not for the grounds) the Common Nationality Law of the marriage would need to apply. This, in your case, would be the law of England and Wales. So, English Law will apply for determining the compensation, maintenance, alimony, child support, effects of the marriage & distribution of assets.

Therefore, you need detailed advice covering both Spanish law and the common nationality law, in order to know the possible options and legal situation.

At this point we must emphasize what it is most important, before deciding to apply for divorce and take that first step, even before deciding whether to divorce in Spain or in the UK, is first to seek independent and proper legal advice.

Confusion is very common in divorces and separations involving interaction of laws from different countries. Frequently, clients mix Spanish property law concepts with their national family law, and think that even if the house in Spain is registered only in the name of one spouse it belongs to both equally; or if someone put more money in the marriage can not claim for compensation,etc

Many such beliefs are not based on legal grounds, and each case need a nuanced analysis. If you find yourself in this situation, we can help and advise you on your options and legal situation.

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

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