Spain’s Series of Divorce Questions

Contributors

A. General

As Spain is a member of the European Union (“EU”), legal separation and divorce procedures will be governed mainly by EU rules. In the absence of EU rules, the Spanish rules of International Private Law will apply.

In any family dispute with international connections, the international jurisdiction of the Spanish courts and the applicable law must be examined separately, making reference to both parties’ petitions.

The following legislations are relevant:- In relation to International Competence of the Spanish Courts
  1. Divorce, legal separation and marriage annulment, Regulation CE 2201/2003 Brussels II bis and Article 22 quáter c) of the Spanish Law (LOPJ). The latter will apply in a subsidiary manner.
  2. Parental Responsibility, Regulation CE 2201/2003 Brussels II bis, Hague Convention 19/10/1996 and Article 22 quáter c) of the Spanish Law (LOPJ). The latter will apply in a subsidiary manner.
  3. Maintenance obligations (Alimony), Regulation CE/4/2009, Hague Convention 23/11/2007 and CHHC 1973 and Convention of Lugano. Article 22 quáter.f) Spanish law (LOPJ). The latter will apply in a subsidiary manner.
  4. Marital Regime, Regulation CE/2016/1103 and Article 22 quáter.c) Spanish law (LOPJ). The latter will apply in a subsidiary manner.
In relation to applicable laws
  1. Divorce, legal separation and marriage annulment, Regulation CE/1259/2010, and Article 107 Spanish Civil Code. The latter will apply in a subsidiary manner.
  2. Parental Responsibility, Regulation CE/2201/2003 Brussels II bis, Hague Convention 19/10/1996 and Articles 9.4 and 9.6 of the Spanish Civil Code. The latter will apply in a subsidiary manner.
  3. Maintenance obligations, Hague Protocol 23/11/2007, with reference to Article 15 Regulation CE 4/2009 and Article 9.7 of the Spanish Civil Code. The latter will apply in a subsidiary manner.
  4. Marital Regime, Regulation CE/2016/1103 and Article 9.2 and 9.3 of the Spanish Civil Code. The latter will apply in a subsidiary manner.

B. Divorce Process in Spain

Yes, subject to Articles 86 and 89 Chapter VIII of Spanish Civil Code (“CC”). Under Spanish law perspective, according to Articles 86 and 89 Chapter VIII of Spanish CC: –

Article 86 CC: “Divorce shall be decreed by the court, whatever the form of performance of the marriage, at the request of one of the spouses, of both or of one with the consent of the other, when the requirements and circumstances of article 81 are met.”

Article 89 CC: “ Dissolution of the marriage by divorce may only take place by means of judgment declaring the divorce and shall be effective from the judgement’s becoming final. It shall not be prejudicial to third parties in good faith until after registration thereof with the Civil Registry.”
Since 1985, parties no longer need to fulfil a specific ground for divorce to file a divorce petition. Parties also need not be separated to apply for a divorce.

The only legal requirement to be fulfilled is that parties must have been married for at least three (3) months, according to Article 81 of the Spanish Civil Code.
The divorce process is a judicial process initiated before the Spanish Courts. A spouse may bring a petition for divorce by contested or uncontested proceedings.

The Spanish divorce process differs from most countries in the rest of Europe. In Spain, the same procedure follows for: –
  1. The request for a decree of the dissolution of the marriage;
  2. Determining custody for the children;
  3. Visitation rights of the non-custodial parent;
  4. Housing;
  5. Alimony;
  6. Spousal maintenance in the event divorce has resulted in an economic imbalance, this includes the decree of dissolution of the economic marital regime.
It is worth noting the dissolution of the economic marital regime and the distribution of assets between spouses will be dealt with in a separate process after the divorce process.

It is necessary to engage a family lawyer in divorce proceedings. A judicial figure namely “Ministerio Fiscal” will act on behalf of the minors and he/she is required to look out for the children’s best interests.

Two Court hearings will be held. The first will be to obtain the first court resolution on preliminary measures regarding custody, visitation rights, alimony, housing and any other aspects in relation to the children. The second and final hearing will deal with preliminary measures that become definitive measures. Where applicable, economic aspects and compensatory pension for spouses will also be dealt with.

C. Jurisdiction Requirements in Spain

Jurisdictional requirements in matrimonial matters such as determining which member state divorce proceedings, legal separation or annulment can be initiated can be found in Regulation 2201/2003. The Court of a Member State has jurisdiction is one where: –
  1. The spouses are habitually resident; or
  2. The spouses were last habitually resident, insofar as one of them still resides there; or
  3. The respondent is habitually resident; or
  4. In the event of a joint application, either spouse is habitually resident; or
  5. The applicant is habitually resident if he/she resided there for at least one (1) year immediately before the application was made; or
  6. The applicant is habitually resident if he or she resided there for at least six (6) months immediately before the application was made and is either a national of the member state.
Under Spanish law, expats need to show they are habitually resident in Spain. This may be evidenced by way of a certificate of local register from the Town Hall where they have their residency, certificate of the school where the children attends and/or tax residence in Spain.

D. Child Issues in Spain

The best interests of the children is the overarching principle guiding the Spanish Courts in making decisions regarding the children. The maintenance of the status quo prior to the divorce is important for the Spanish Court. It is common for the principal caregiver of the children to be granted custody of the children.

Children are normally examined by teams of psychologists assigned by the Court to determine the best custody regime for the children. In the event the children are twelve (12) years old and mature enough before that age, they will be heard by the Judge who will then take into account the children’s wishes.
Under the concept of “parental responsibility”, the Spanish Civil Code includes two (2) different concepts: –
  1. Patria Potestad”: this mean “parental responsibility and authority”;
  2. Guardia y custodia”: this mean “daily care and custody”. The judge may decide if both responsibilities correspond to both parents or only one of them, depending on the circumstances of the case. “Custody” means the parent has residency of the children, enjoying the other parent a regime of visitation and communication rights.
Regardless of whether parties are legally married, both parents have “patria potestad” as expressed in Article 154 of the Spanish Civil Code. A parent can only be deprived of his/her “patria potestad” over a minor in any of the exceptional cases expressly stated in law. The exercise of “patria potestad” include obligations for parents to take care of minors, having them in their company and providing them with food and education. As far as “guardia y custodia” is concerned, the Spanish Civil Code gives the Judge discretion to decide the child’s permanent residence with a parent. The Spanish Law considers two types of “guardia y custodia” in the event parents do not live together or are divorced. They are: –
  1. Sole Custody; or
  2. Shared Custody.
The key aspect the Judge will consider is whether the mother has been “taking care of the minor since he was born, being the only one who has lived with him from the beginning. In such a situation, it is unlikely the Judge will decide a change in custody, and a separation of the child from his mother, unless there is serious reason that requires so. Some examples include, the mother having a serious mental disease that requires hospital treatments, abandonment of the child, abuse of the child or cases of international child abduction.

The Spanish Supreme Court had declared that joint custody is the most beneficial custody regime for children after divorce. Joint custody requires both parents to reside in the same city for the child to be able to attend the same school, thereby not requiring a change in the children’s social environment. Both parents should also maintain a civil and cordial relationship.
Parents having joint “patria potestad” over their children will have to discuss the most important decisions in relation to the children with each other. This includes but is not limited to the children’s education and their medical treatments. In the event parties are expats, they are required to decide the child’s residence so that both parents are not legally entitled to solely decide to change the minor’s country of residence without the consent of the other parent.

On the other hand, the non-custodial parent has the right to keep frequent contact with his/her child by any means available. He/she will also have a right to visit the child and spend time with him/her for certain periods determined by the Judge on alternate weekends and half of the school vacations during Christmas, Easter and Summer holidays.

In practice, the parent having exclusive “guardia y custodia” of his/her child will have more decision making power regarding the child. This is even in the case of emergency, a parent may unilaterally decide what he/she considers convenient without necessarily requesting the other parent’s consent.

Should one parent’s residence be in a different country to where the child lives with his/her mother, the mother will normally be granted by the Judge almost full capacity to decide on all aspects of the child’s life.
Article 93 of the Spanish Civil Code states the following:-

“The Judge shall in any event determine each parent’s contribution to pay child support and shall adopt convenient measures to ensure the effectiveness and suitability of the payments to economic circumstances and to the needs of the children from time to time.”

“If children who are of legal age or emancipated but have no own resources should live in the family home, the Judge, in the same resolution, shall set any support which may be due in accordance with articles 142 et seq. of this Code.”

Separately, in the case of sole custody, a custodial parent will receive from the non-custodia; parent an amount under the concept of alimony that covers the children’s needs in relation to education, housing, maintenance and ordinary expenses such as food and clothes. The contribution of the custodial parent shall be understood to be made through the daily care of the child and the work done to care for the family.

In the case of joint custody, both parents will contribute according to his/her respective financial resources and will each support the expenses when the children are in his/her company.
According to Article 146 of the Spanish Civil Code, “the amount of the support shall be proportional to the estate or resources of the person who provides it and the needs of the person receiving it.”

Support shall be reduced or increased proportionally in accordance to the increase or reduction of the recipient needs and the wealth of the payer for child maintenance.

Alimony is established in accordance to the expenses of the children and income of the parents. The children expenses include the costs of housing, food and education. Each parent is required to provide financial reports evidencing his/her income. One of the factors the Spanish Court takes into account when deciding the amount for child maintenance is to maintain the economic status enjoyed by the children prior to the break-up of the marriage as far as possible.

In cases of sole custody, the non-custodial parent shall provide maintenance and make payments to the custodial parent by taking into account the costs of housing, food and education of the children. Maintenance shall be paid by both parents until the children are economically independent regardless of joint or sole custody.

E. Division of Matrimonial Assets in Spain

Under Spanish Law, matrimonial assets are all assets acquired during the marriage by both spouses. This include assets where spouses have brought into the marriage and assets acquired gratuitously during the marriage.

Spain has more than one matrimonial property regime, but these answers will specifically relate to the Spanish Civil Code, with the exception of the discussion of the legislation of the autonomous communities in 2.7.

The applicable matrimonial property regime are as follows:-
  1. One where spouses have stipulated in a prenuptial agreement called “Capitulaciones Matrimoniales”;
  2. Community of assets (“Sociedad de Gananciales”);
  3. Separation of Assets;
  4. Participation Regime.
In the absence of a prenuptial agreement, the applicable matrimonial property regime is the community of assets (“Sociedad de Gananciales”). Under this system, the acquisitions and benefits obtained by each spouse while the system is in effect are common and divided equal when the regime is dissolved.

The system provides for the existence of both personal and community property. Personal property may become community property and vice versa by means of an agreement between spouses in the form of an authentic act. Personal assets are defined in Article 1346 of the Spanish Civil Code.
The overarching principle guiding the Spanish Court in the division of matrimonial assets is the existence of a prenuptial agreement (“Capitulaciones Matrimoniales”) signed before a Public Notary prior to the celebration of the marriage wherein parties to a marriage will choose an economic regime to apply to their marriage.

If the marital regime chosen by spouses is the community of assets, an inventory is required after the dissolution and before liquidation of assets. In the event the community of assets regime has been dissolved by way of a Court decision or mutual agreement by both spouses, upon liquidation of the assets, both spouses will receive 50% of the valued assets.

The community of assets may be used to cover marital expenses, the needs of the family, the ordinary administration of assets and the exercise of spouses’ profession or occupation. According to Article 1319 of the Spanish Civil Code, debts incurred by a spouse used for the household or family may be satisfied from the community property, the personal property of the debtor spouse and, on a subsidiary basis, the personal property of the other spouse.
In a community of assets regime, the property will be divided as follows: –
  1. First, an inventory of assets and liabilities is made.
  2. Community debts are paid off first, in cash or community property. Creditors shall retain their rights until full payment.
  3. After payments to creditors have been completed, compensation and reimbursements due to each spouse are paid.
  4. Any remaining monies will be divided equally between the husband and wife or their heirs.
Article 1346 of the Spanish Civil Code lists out personal assets that are excluded from division and exclusive to each of the spouses.

Generally, where the family home is a personal asset belonging to a spouse, it is excluded from the division of assets. However, according to Article 96 of the Spanish Civil Code, the Courts may award the family home to the other spouse if he/she depends on its continued use to secure his/her vital needs or when a child has a substantial need for its continued use.

F. Spousal Maintenance in Spain

In the event a spouse suffers an economic imbalance or a deterioration to his/her situation pre-marriage as a result of the separation or divorce, he/she shall be entitled to compensation.

Such compensation may consist of a temporary or indefinite allowance or a lump sum settlement, as determined in parties’ settlement agreement or the Court’s judgment.

According to the Spanish Constitution, men and women have equal treatment before the law. However, it is generally more common in Spain for the wife to dedicate more time to care for the family.
The overarching principle that guides the Court in making orders for spousal maintenance is whether a spouse will suffer an economic imbalance or a deterioration to his/her situation pre-marriage as a result of the separation or divorce.

Several years ago, the Spanish Court had established spousal maintenance for a wife for her entire life due to a lack of professional training of Spanish women and their complete dedication to the family since the celebration of the marriage. However, the existence of spousal maintenance for a wife has changed very quickly in recent years due to the social changes and the advancement of the integration of women into working life.

Presently, the grant of spousal maintenance has reduced. To facilitate access to the labour market for women, spousal maintenance is generally granted for a short period, depending on the specific facts of the case.
In the absence of any agreements between the parties, the Judge shall determine the amount for spousal maintenance by taking into account the following circumstances: –
  1. Any agreements reached by parties;
  2. Age and state of health of parties;.
  3. Professional qualifications and likelihood of getting a job of parties;
  4. Past and future dedication to the family by the parties;
  5. Collaboration by working in the commercial, industrial or professional activities of a spouse;
  6. The duration of parties marriage and their marital cohabitation;
  7. The possible loss of pension rights;
  8. The economic wealth and resources of each spouse;
  9. The needs of each spouse.
The Judge will then make a judgment upon consideration of the aforementioned factors.
The judicial resolution shall set the basis to update spousal maintenance and any guarantees to ensure payments of spousal maintenance remain effective.