Divorce in Spain

Divorce in Spain

Posted by adm4yGog24 in Family Law 18 Jul 2013

Family Law and Divorce in Spain

 

We are highly regarded for our work in Spain for clients from around the world and aim to set our customers minds at ease.

Whether you just received papers from your spouse’s Spanish lawyer or are thinking of filing for divorce in Spain yourself, the main thing is to remain calm.

Every case is special and will present its own curiosities, so contact family law specialists with extensive knowledge on Spanish and International law so you get all the advice you need about pros and cons of deciding to proceed through either law system.

Our specialist will advise you on measure to take in order to safeguard your personal wealth through the process of a divorce.

If you own property either in Spain or in other countries and you’re worried about correctly settling the financial separation, we assist in obtaining just settlements while keeping legal expenses to a minimum. We will advise you on how you can make sure the agreed consent Order remains effective on assets that are not within the England and Wales territories.

If you have children, if your ex-partner or yourself are petitioning for divorce in England or Wales contact us straight away regarding international child access agreements.

Even in cases where the spouse has filed Child Abduction Application, we can provide effective assistance, but time is of the essence!

 

Jurisdiction

 

Either one of the spouses can file for divorce in Spain and consent of the other spouse is not required under Spanish law.

As shortly as three months after getting married Spanish divorce proceedings can be started.

What are determining factors to be able to get divorced under Spanish law?

The ability to demonstrate ‘habitual residence’ suffices to file proceedings in Spain, because under Spanish law, there is no distinction between domicile and habitual residence, which is different than the way this works in England and Wales.

Should you aim to dispute the Spanish jurisdiction, beware of making a typical mistake. Should you or your Spanish lawyer reply to or reject an offer, this could be interpreted by the judge as accepting the jurisdiction and effectively forfeiting your option to challenge the jurisdiction.

 

Prenuptial contracts

 

Prenuptial agreements are generally adhered to in Spain when couples get divorced, apart from in cases where it can be demonstrated that doing so would be very harmful to either spouse or any children involved. Prenuptial agreements can be enforced in Spain, while in the UK they do not always hold up in court.

 

Should you require any information on international family law after seeing the challenges touched upon here, do not hesitate to get in touch with us here.

 

Divorce settlements in Spain

 

Whether you just received papers from your spouse’s Spanish lawyer or are thinking of filing for divorce in Spain yourself, get advice on whether the proceedings should be dealt with in Spain or the UK.

 

Child maintenance

 

Spanish judges deal with child maintenance agreements very early in the divorce proceedings. If you’ve been presented with a proposal on child support payments, it is essential that you reply and present your financial situation at the earliest opportunity.

When both parties start proceedings for instance in the UK and Spain simultaneously, it can happen that due to the different process followed in each country, the Spanish judge already has dealt with all financial matters while this hasn’t even been touched upon by the judge in England or Wales.

Also worth noting is that in Spain the respondent party needs to provide proof regarding any financial assets. If you have personal wealth to protect, that puts you in an advantageous position, but when you are in the opposite position and are not fully aware of the global picture of the matrimonial assets, this can put you immensely on the back foot.

 

Legally in Spain, parents are responsible for raising and caring for their children and everything that involves. Both parents need to be equally involved (or at least have the right to be) in decisions affecting their child such as on health care, education etc. These rights are unaffected by the parents’ separation and the children’s living arrangements afterwards.

 

Child abduction

 

Spain signed the Hague convention on Child abduction, which contains measures that when a child gets ‘internationally abducted’ by one family member it can be returned to other signing member

states. For this reason your children are ‘safe’ in Spain as they can be returned when illegally taken away from home.

 

Spouse maintenance

When divorcing in Spain, spouse maintenance payments are not automatic. They will be awarded when it can be demonstrated that the spouse will be worse off financially because of the separation. The most typical scenario is when one partner is a high earner and can continue on this path after the divorce while the other has given up a career to provide child care. The latter spouse would be awarded maintenance to adjust for the financial imbalance created during the marriage.

Maintenance amounts are set in court and when trying to obtain maintenance payments you need to demonstrate the disadvantage you will suffer both compared to the situation during the marriage as in comparison with your ex-spouse after the divorce.

 

Property regimes

 

Property regimes can be set before getting married and modified in the course of the marriage under Spanish law.

The most common regime is ‘community property’ where all assets gained during the marriage become common property and will be split equally in case of divorce. When no prenuptial has been signed, the default is this regime.

Another regime is called ‘separate property’ where property bought before getting married is especially considered. A ‘profit-sharing regime’ enables spouses to share the profits gained during the course of the marriage while protecting previously acquired assets.

But as mentioned above, if a judge considers a spouse or child to be financially worse off due to the divorce, compensation can be ordered regardless or the property regime set.

It is fairly established practice that the family home remains used by the spouse that takes care of underage children, but this is not set in stone.

Certain regions like Catalonia have varying regimes so take extra care to get specialized guidance when living in these autonomic areas.

 

Should you require any information on international family law after seeing the challenges touched upon here, do not hesitate to get in touch with us here.

 

 

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