The European Council Regulation No. 4/2009 of December 2008 in regards to jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters related to maintenance obligations is now in forced. As per its Article 76, this Regulation applies from 18 June 2011. This Council Regulation is of great importance as it will determine […]
FAMILY AND COHABITATION LAW; divorces, separations, etc. (Spain/UK)
Family law in Spain. Divorces, separations, execution of court orders, child abduction, etc.
Marriages, couples, parent-child relationships, their breakdowns, etc, in general family law, requires specific knowledge, particularly when the assets are in more than one country and when different laws may be applicable. Concepts such as nationality, domicile have to be interpreted and understood, according to the different legal systems. At White Baos Abogados we can help you in your divorce and separation in Spain.
Divorce and separation in Spain. The law applicable to marriage
When it comes to legally advising on a possible divorce or separation in Spain, it is essential to know the law applicable to marriage. Mainly, in what refers to the matrimonial regime.
Joint property system. Thus, it is essential to know under what matrimonial regime we are married. If the assets of the marriage are part of the matrimonial community. And therefore, it belongs to both spouses in principle regardless of who bought it. This is what is known as the joint or community property system. This is the regimen foreseen normally in Spanish, French, Belgian law, etc.
Separation property system. On other occasions, the matrimonial regime is that of separation of property. Which basically means that the spouses maintain separate estates. Therefore, what is acquired does not belong to your marriage community. Otherwise each one will have their own assets. The English system is interpretated in Spain to be of this kind.
Therefore, knowing the regime of our marriage is essential when starting a family procedure. Especially if we are expatriates. This way we will know if the assets we have in Spain and outside of Spain are considered to belong to both spouses, or not. It can also be very important to grant marriage agreements (pre and post nuptial agreements) to agree the marriage regime that spouses want.
Divorce and separation in Spain. The law applicable to divorce
Likewise, it is essential to know the law applicable to the divorce.
If the Spanish courts are competent to deal with the divorce, it is possible that the law that should govern the divorce is the Spanish one. But it may also be the law from another country.
The applicable law will depend on the place of residence of the spouses at the time of filing for divorce. But it may depend on the nationality, etc.
As lawyers it is essential to be able to determine what applicable law. To determine, the requirements to be able to divorce, etc.
Other services in the area of family law:
Likewise, our law firm assists individuals and other foreign law firms. Mainly in the notification of claims of foreign family proceedings in Spain. And international child abduction.
Drafting and enforcement of foreign court divorce or separation orders in Spain
One of the most important services we provide is to assist in the execution in Spain of family judgements (divorce, separation, etc.) granted abroad.
Sometimes, in divorce or separation proceedings, court orders granted in the countries of origin that must be executed in Spain. Our law firm assists foreign law firms in the drafting of divorce agreements. So that they can be executed in Spain. Well, they must include a minimum content, such as real estate registration data, etc.
We also help clients to execute their court decision in Spain, in the event that the agreed transfer of properties has not been fulfilled, etc.
Our family law service
As specialist lawyers we can advise you both in relation to divorce and separation in Spain, both by mutual agreement, as well as litigation, and in the rest of the services indicated.
If you want expert legal advice, do not hesitate to contact us.
In Spain, you can get divorced either in Court (which is the most common way) or before a Notary Public. However, if there are minor children in the marriage, it is not possible to get divorced before a Notary, and you are required to resort to the Courts.
In Spain there are two ways of getting divorced. Divorce by mutual agreement and contentious divorce. The first one involves the spouses’ reaching agreements on the economic and personal conditions that will apply to their divorce. These agreements will be compiled in a document known as “Settlement agreement”. The contentious divorce occurs when the spouses do not reach an agreement and resort to a Judge to decide on this matters.
In Spain it is no longer necessary to prove grounds or cause to get divorced. Once 3 months have passed since the celebration of the marriage, either of the spouses can apply for divorce. You can get divorced even if your partner does not agree and wants to continue the relationship.
Yes. Generally speaking, if you have your habitual residence in Spain (or if the last family domicile is in Spanish territory) the Spanish Courts would have jurisdiction.
If your habitual residence is in Spain, the Spanish law may apply to the divorce. However, it is important to bear in mind that if you got married outside Spain (or after the marriage you lived in a foreign country) the applicable law to your matrimonial property regime, might be the law of that country. This is why it is necessary to study the specific circumstances of each case.
You will need to present your marriage certificate, the birth certificate of your children, deeds or documents concerning your real estate, proof of your habitual residence, etc. Please note that some of these documents may require a sworn translation and apostille/legalisation if they were issued abroad.
If you get divorced before the Courts, you will need to be assisted by a solicitor and a procurator. If the divorce is by mutual agreement, both spouses may share solicitor and/or procurator.
If the spouses cannot reach an agreement on the custody of the children, the judge will decide. There are different types of custody. On the one hand, there is the single-parent custody. When custody is awarded to only one of the parents. On the other hand, it also exists a shared custody, in which both parents alternately share custody of the children. This type of custody is increasingly common in Spain.
When there are minor children in the marriage, it is compulsory to get divorced in Court. The Public Prosecutor’s Office will intervene in the process and will ensure that the interests of the minors are respected. When the Judge passes sentence, besides deciding which spouse gets the custody, he or she will also decide on other issues. The visitation and communication regime of the non-custodial parent; the payment (or not) of child maintenance, etc.
Article 97 of the Spanish Civil Code foresees a compensatory pension between spouses to compensate for the economic imbalance that may result from the divorce. Its amount will be calculated according to the dedication of the spouses to the marriage, the economic means of each spouse, the duration of the marriage, etc.
Yes, among others, art. 1438 of the Spanish Civil Code also contemplates a compensation, when the matrimonial property regime of the spouses is separation of property.
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