Question. Expat Divorce in Spain
We are a married British couple living in Denia, Alicante. Most of our assets and real estate are in Spain, although we have some investments in the UK. We want to get divorced, is it advisable to return to our country to apply for the divorce there, or can we get divorced here.? Thank you for your help.
Dear readers, thank you for your enquiry.
In principle, and as prescribed in Article 3 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, if both spouses have their habitual residence in Spain, it will be the Spanish courts that will have jurisdiction to decide on the divorce.
Although this rule has some exceptions, ( if you return to your country, or if you have kept domicile in your country for example), normally, it is advisable to file for divorce before the Spanish courts.
In addition, under Article 8 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, it is established, that if the spouses had not choosen any law as the applicable one for the divorce, the divorce should be subject to the law of the State:
(a) where the spouses are habitually resident at the time the court is held; or, failing that
(b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was held, in so far as one of the spouses still resides in that State at the time the court is held; etc.
Therefore, we understand that if you want to apply for a divorce by mutual agreement or consent, it would be easier and advisable, to apply for it in front of the Spanish courts, for various reasons:
.- Proximity, you will not have to deal with the courts of your country of origin where you no longer reside.
.- Registery. Having goods and assets in Spain, the Spanish Court’s decision will be directly registrable in the relevant registers, as the Land Registry, etc. This is important, as sometimes there are serious problems in recognizing foreign divorce judgments in Spain, as their wording, structure, and content are sometimes very different from the Spanish judicial decisions, which can affect the type of tax to be paid, and the possibility being directly registered, etc.
.-Ease. Under Spanish law it is not necessary to prove a cause or reason for the divorce, and therefore there is no need not prove the existence of a separation, lack of coexistence, etc., it being enough that one of the spouses wish to get divorced.
.-Cost. It is very economical, we understand that it would not be necessary to prove the law of your country or nationality, therefore one would not need to provide certificate of laws, thus avoiding much more expensive procedures .
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The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
Spanish Law firm.
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