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Divorce in Spain: Spanish and English Law
CAPITULACIONES MATRIMONIALES (MARRIAGE ARTICLES/SETTLEMENTS AND ECONOMIC MARRIAGE REGIMES IN SPAIN.
COMMUNITY PROPERTY- COMMUNITY OF ASSETS
DIVORCE AND SEPARATION
DIVORCE AND SEPARATION OF FOREIGNERS IN SPAIN
When a person decides to get married, he/she is accepting a contract where both spouses are legally linked to each other and in agreement with a number of rights and obligations.
CAPITULACIONES MATRIMONIALES (MARRIAGE ARTICLES/SETTLEMENT AND ECONOMIC MARRIAGE REGIME IN SPAIN .
In Spain the economic regime governing the marriage or its economic consequences can be set up or modified by means of the CAPITULACIONES MATRIMONIALES ( which is a kind of prenuptial or postnuptial agreements). In general the economic regime in Spain is the common property regime ( SOCIEDAD DE GANANCIALES) except for the regions of Catalonia, Valencia, Aragon, Basque Country and Navarra, as these regions have their own matrimonial regime.
Through the CAPITULACIONES MATRIMONIALES in Spain the spouses can choose the economic regime for their marriage between the 3 regimes foreseen in the Spanish Civil Code:
COMMUNITY OF ASSETS ( SOCIEDAD DE GANANCIALES): According wiht this regime the profits and losses of the spouses are shared between them, and in case of divorce or dissolution of the marriage the matrimonial assets, should be, normally, divided equally between them.
SEPARATE PROPERTY ( SEPARACION DE BIENES): Under this regime each spouse has and keeps their own private assets before and during the marriage.
PARTITION SCHEME (REGIMEN DE PARTICIPACION): Both spouses have the right to share the benefits obtained by the otherduring the marriage.
The previously mentioned CAPITULACIONES MATRIMONIALES are not mandatory, therefore if they are not granted then the regime established for that territory or region will apply.
DIVORCE AND SEPARATION IN SPAIN.
In case of separation or divorce, the spouses will need to comply with the obligations incurred as result of the marriage and divorce according to their applicable matrimonial regime and the CAPITULACIONES MATRIMONIALES by which the marriage was governed.
Issues like compensation between spouses, maintenances for children, use of the family home, etc., must be decided by the Court in these legal processes..
The divorce and the separation could befiled by consent or in a contentious way, depending if the spouses are or not in agreement.
DIVORCE AND SEPARATION OF FOREIGNERS IN SPAIN:
If you are not Spanish ( British, Dutch, etc) and you want to start a process of separation or divorce in Spain, even if you were not married in Spain ( UK, England, Ireland, etc) you will be able to apply for divorce in Spain if the Spanish Courts has jurisdiction.
In this case your national law could apply but you should bear in mind that demonstrating the applicable national law in a different country is far from straightforward and needs to be dealt with by someone specialized in these matters in both countries. Unless the position under your national law and the applicable law to the divorce and the marriage is understood it will be impossible to negotiate or be advised properly whether dealing with a Divorce by Consent or Contentious Divorce.
In order to be able to know if Spain has jurisdiction the last domicile of the family ,the actual domicile of the parents and the children, etc will need to be checked.
You can get more information about our services regarding getting divorced or separated in Spain, on the following VIDEOS:
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