Getting a Divorce in Spain

Divorce is one of the most common risks associated with living in another country. The reason why is subject to some debate but meeting new people, drink, sunshine and the fact that you are not under the immediate eye of your family or neighbours probably all contribute. So, in some cases, do lurking problems that existed before the move. Whatever the reason, lots of people end up seeing a Spanish lawyer about divorce. Fortunately, the system works well.

This guide covers…

This guide covers the question of whether your existing divorce (or proposed divorce) will be recognized in Spain and gives details of how you can obtain divorce in Spain, whether as a resident or as a national.

It also deals, briefly, with the related questions of the financial settlement between the husband and wife and what should happen to the children.

It describes, in particular, how to deal with all of these issues in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one “autonomous community” (comunidad autónomalightbulb image - click here for more information on this subject to another.

This guide does not deal with legal separation or the position of parties who are not married. Nor does it cover the process of annulling a marriage.

See our Guide to Family Law in Spain for more information.

Introduction

Depending upon where you come from, it’s likely that somewhere between 10% and 70% of all marriages end in divorce.

Divorce is the second most stressful life event (after the death of your spouse – but before both imprisonment and the death of a close family member).

Whilst there are various steps that can be taken to reduce the stress of divorce, probably the most important factors are the attitude of the legal system to divorce and the way in which your divorce will be dealt with.

Terminology in this guide

  1. Access (visitas): the right of a parent who does not normally look after the child to see the child
  2. Child/children (hijo/s): a child/the children of the marriage or the child/ the children of one of the parties and adopted by the other or a child/ the children adopted by both parties
  3. Custody (custodia): the right of a person to have day-to-day care and control of the child
  4. Financial provision (convenio regulador): arrangements agreed between the parties (and, if necessary, adopted by the court) or arrangements ordered by the court as to what should happen to the assets of the parties to the marriage and as to ongoing financial support for either of the parties to the marriage or the children
  5. Maintenance (manutención): ongoing financial provision by one of the parties of the divorce to the other or to any children
  6. Petitioner (demandante): the person applying for the divorce
  7. Respondent (demandado): the person against whom the divorce proceedings have been started

Are existing divorces recognised in Spain?

Fortunately, Spain is a signatory to the Hague Marriage Convention (the ‘Hague Convention on the Celebration and Recognition of the Validity of Marriages’) of 1978, which entered into force in 1991. Spain is unusual in adopting this Convention. So far only three other countries (Australia, Luxembourg and the Netherlands) have actually agreed to abide by it (become ‘contracting states’)! As the Convention only applies to marriages conducted in another contracting state then the practical effect of this is, at the moment, somewhat limited.

Divorce obtained in a country that was a signatory to the 1970 Convention

Spain is also a signatory to the Hague Convention of 1970 (the ‘Hague Convention on the Recognition of Divorces and Legal Separations’). Some 20 other nations are parties to this convention. Most of these are in Europe. Importantly, the US is not a party to the Convention.

Under the Hague Convention, a divorce or legal separation will be recognised provided that they have been performed in accordance with the legal process required in the state where the divorce was obtained AND and one of the following applies:

  • The Respondent was resident in the state where the proceedings were started at the time the proceedings were started. For these purposes the term ‘resident’ has its normal, common sense meaning. The person must have been associated with that state for a significant amount of time and, where necessary, have the necessary official permission to be resident in that state.
  • The Petitioner was resident in the state where the proceedings were started at the time when the proceedings were started and had been so resident for at least a year
  • The Petitioner was resident in the state where the proceedings were started at the time when the proceedings were started and had been so resident for any period of time together with the Respondent
  • The state where the proceedings were started is the state of which both parties were citizens
  • The state where the proceedings were started was the state of which the Petitioner was a citizen and where he lived or where he had lived for at least one year in the past two years
  • The state where the proceedings were started was the state of which the Petitioner was a citizen – and where he was, at the time the proceedings were started, physically present and the state in which the parties had immediately before the presentation of the divorce petition had their joint residence does not provide for divorce

This all sounds a bit complicated but if, as is normally the case, you obtained a divorce in the country in which you and your ex-spouse had been resident for some time your divorce will be recognised.

It will also be recognised in the other circumstances set out in the Convention.

Divorce obtained in a country that was not a signatory to the 1970 Convention

In these circumstances, Spain applies its own “law of comity”. The “law of comity” means the rules that apply in a country when considering whether to recognise the validity of legal and judicial acts that took place in another country. These rules apply in all sorts of situations other than divorce. For example, the recognition of contracts or debts recognised by the courts in another country.

In Spain, the laws of comity are very generous.

Most countries will respect the legal, judicial and executive acts that took place in another country only if the recognition is reciprocated. Spain presumes that any legal, executive and judicial act that took place in another country and in accordance with the law of that country is valid. The only exception to this is if the act in question is one that it would be repugnant to recognise in the light of the basic and fundamental laws of Spain. For example, if the act is a request for extradition it will not be accepted if the person would face the death penalty. If the act is a judgement of a foreign court relating to defamation (slander or libel) it will not be recognised if the country making the order does not recognise the right to free speech.

However, when it comes to the question of divorce the position in practise is that any divorce legally valid in the country where the divorce was granted will be recognised as valid in Spain.

Can a foreigner obtain a divorce in Spain?

Yes. In most cases you will be able to do so.

Visitor or short-term resident in Spain

You will not be able to apply for a divorce in Spain until you are resident in Spain. This means that divorce is not open to mere visitors.

Resident in Spain

If you hold a Spanish residence permit, you will be able to apply for a divorce in Spain. Of course, you will have to show that you have grounds for divorce under the law of Spain.

Note that it is only you who has to be resident in Spain for this period. It is not necessary that your spouse has ever been resident in Spain.

Also note there may be other places where you could start divorce proceedings. For example, you could normally start divorce proceedings in the country in which your spouse was resident. See our guides to getting a divorce in other countries for more information about the rules in those countries.

Citizen of Spain

If you are a citizen of Spain you will follow exactly the same procedure and have exactly the same rights as a person who is merely officially resident in Spain.

Grounds for divorce in Spain

The only legal requirement to apply for divorce is that you have been married for longer than three months.

Current legislation means that you don’t need any specific grounds (justifications) for getting a divorce.

The process of divorce in Spain

  1. Divorce applications can be filed even if the parties have not investigated the possibility of reconciliation.However, it is very common that both parties try to achieve a mutual agreement about Financial Provision and, on the basis of that agreement, agree to a divorce. This is called Divorcio de Mutuo Acuerdo.
  2. The parties normally discuss and aim to achieve an agreement on the following points:
    • The care and custody of any children
    • The access of the two parties to any children
    • The ongoing maintenance of the parties
    • The ongoing maintenance of any children
    • The right to residence (if any) in the former matrimonial home
    • The division of the assets of the parties

    If no agreement is possible, either of the parties could initiate a court case.

  3. The application for divorce is filed at the Court of First Instance (Juzgado de Primera Instancia) local to the address ( residency) of the couple or petitioner. It is necessary and obligatory to engage lawyers to represent them in the course of the divorce proceedings. The lawyer will then file the application on the Petitioner’s behalf.
  4. A copy of the application for divorce is served by the Court on the Respondent.This is done via a legal professional called the Procurador who conveys communications between lawyers, parties to proceedings and the Court.
  5. About four weeks after the Court has received acknowledgement that the application has been received by the Respondent there will be a preliminary hearing of the case to deal with the following questions:
    • Whether the divorce is going to be contested
    • Whether there is agreement on all of the mediation issues referred to above
    • If there is no such agreement, what steps need to be taken by the parties to allow the Court to make the necessary orders on these points. These will include things such as producing proof of income, proof of assets, valuation of the matrimonial home and assessing the needs of the children
    • Whether a separate lawyer should be appointed to look after the interests of the children. This is usually done if the parties cannot reach agreement on the various issues concerning the children
    • The timescale for dealing with the rest of the divorce
    • Any special procedural arrangements that may be required
  6. The arrangements concerning financial provision and the children are then finalised (see below).
  7. The Court reviews all of the arrangements relating to the divorce and, if the arrangements as to financial provision and the children are satisfactory, it grants a certificate of divorce.If the parties agree to the divorce – i.e. if the divorce is not contested – no formal hearing is required to satisfy the Court.If the divorce is contested then there will be a hearing at which witnesses will be called to prove any allegations made.
  8. The official certificate of divorce can then be filed (using official copies obtained from the Courts) with the financial order made by the court and used by the Land Registry, banks, the Registry of Shares etc. to change the ownership of any assets affected by the divorce. If those assets are located outside Spain then a special version of the certificate and order are obtained, officially translated into the necessary language and carrying a certificate from the court explaining the nature of the document.

What happens to the children?

Under the law of Spain the interests of any children are the Court’s primary concern when dealing with a divorce.

The Court must ensure that, as far as possible, they are financially secure and not financially disadvantaged by the divorce. Thus, for example, wherever possible and unless the effect would be to reduce one or both parents to poverty, it will seek to allow the children to continue with their current education and to remain in their current home.

In order to do this the Court will consider the issues below.

If there is agreement by the parties on these issues the Court will consider whether the agreement appears to be fair and reasonable when looked at from the perspective of the children.

Any decision that affect the interests of the children will be reviewed by the Public Prosecutor (Fiscal), who protects the interests of the children during the divorce process.

If there is no agreement between the parties or if it feels that that agreement is unreasonable, the Court will make such orders as it sees fit:

  1. Direction: it is normal for all of the major decisions regarding the child’s life to be made by the parents together, even after divorce. These include the type of schooling to be received, major healthcare decisions, religious observance, the country of residence etc. In extraordinary cases where this is not possible the Court will give this responsibility to only one of the parents.
  2. Residence: with which parent will the child reside on a day-to-day basis? This is the parent who will also have the responsibility for making the day-to-day decisions regarding the child’s life.
  3. Access/visitation: what arrangements should be made for the parent with whom the child does not live to see the child?. These arrangements are normally expressed in specific terms.
  4. The home: where will the child live? Where possible, this should be the former matrimonial home but, if that is not possible, the Court will want to scrutinise details of the proposed arrangement.
  5. Financial provision: who should pay to look after the child, and how much? If both parents are working it is common for each to be ordered to contribute a certain amount to the expenses of the child. These payments are made into a special bank account against which the parent with whom the child resides can draw where necessary. The amount they can withdraw is specified by the Court and increases with inflation. It can be varied on a later application to the Court, as can the amount of the financial contribution to be made by each of the parents.
  6. Is it necessary for the Court to appoint a social worker to have oversight of the child? Unless there are difficult family circumstances or a very tense relationship between the parents, this is rare.

What happens to the money in a Spanish divorce?

Assets

This will depend on the matrimonial regime of your country, or the pre-nuptial agreement signed by the couple, if there is any. When you divorce, after the needs of the children are taken into account the distribution of assets will be taken care of.

The ‘matrimonial regime’ (régimen matrimonial, régimen económico matrimonial or régimen patrimonial del matrimonio) is the set of rules that govern the financial aspects of your marriage. In many countries, the spouses can choose the rules that will apply. For example, they could agree – at the time of the marriage or (in some places) later – that all of their assets, present and future, will belong to the couple equally or that all of the assets belonging to them at the time of the marriage shall remain the property of their existing owner but that all assets acquired from that point will belong to them equally. There are many other options.

If there are children

If, as is often the case, the Court orders that the children should remain in the former matrimonial home or some substitute for it until they reach the age of 18 then the division of the couple’s assets will be in two phases: immediate and once the children reach the age of 18.

Both parents are obliged to pay for the matrimonial home – for example, if there is a mortgage on it – during the time the children are living in it. The former matrimonial home will then be sold once the children no longer need it and its value split between the parties in the way set out in their matrimonial regime.

If there are no children

If there are no children, then you can expect an order that all of the assets are valued and then divided between the parties in the way specified in their matrimonial regime.

In case of separately owned assets, each one will get what is his or hers.

In case of joint assets, everything must be split in equal shares. The parties will generally agree who gets what (e.g. I will have the car, you will have the boat) during a mediation process or via their lawyers. If they cannot agree then the Court shall decide who gets what –  or even decide that everything should be sold and the proceeds of sale divided equally between the parties. This encourages agreement as such an arrangement is usually financially disastrous.

However, any form of order is possible, based on the principle that the assets of the couple belong to them in the way set out in their matrimonial regime and subject to the overriding concern to make proper arrangements for the children.

Ongoing support

Either spouse may, in appropriate circumstances, apply for ongoing support from the other. This is only applicable when there is financial unbalance between the situation before the marriage, and the situation in which the spouses are left after the divorce. This normally happens when one of them leaves work and stays at home to take care of the family.

Non-married couples

It doesn’t. See our Guide to Family Law in Spain for details.

Same sex couples

If they are not married, it doesn’t. If they are married, then the same rules apply.

Divorce costs in Spain

This depends upon whether the divorce is contested.

If it is not contested, and it is by mutual agreement, the whole process is likely to cost less than €1,500.

If it is contested, it can cost more than double this amount, but this depends upon the complexity of the divorce.

In a very complex and vicious divorce, it can cost an awful lot of money!

Conclusion

The main features of Spanish divorce law are the absolute preoccupation with protecting the rights of any children and the complete insistence that there should be adequate financial provision before any divorce is agreed. Beyond that, the process will depend on complexity of the circumstances, and the capacity of the parties to reach an amicable agreement.

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