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Divorce in Spain

At RDB Abogados, we understand that divorce can be a painful process for both parties, and especially for any children involved. We aim to settle the divorce in a fair and dignified manner with our client's best interests in mind. Our team of specialised divorce lawyers will listen and guide you through this delicate process, while offering support along the way.

Types of Divorce in Spain

Both spouses may request divorce proceedings together, in which case it is known as a divorce by mutual accord — more commonly referred to as an Express Divorce. Alternatively, one spouse alone may request a dissolution of the marriage, in which case it is known as a contentious divorce.

The main difference is one of expense and time. Failure to agree on the divorce terms may require negotiation between lawyers and the production of third-party evidence. A divorce by mutual accord can be concluded in as little as a few weeks, whereas a contentious divorce may last anywhere from a few months to more than a year.

It is therefore always preferable to pursue a divorce by mutual accord wherever possible.

Considering Divorce in Spain?

If you are contemplating filing for divorce in Spain, or if you have received a letter from your spouse or their Spanish lawyer — don't panic. Take a deep breath and consider the following:

  • All the facts in your particular case are unique, so it is important not to delay. Get in touch with our experienced team of international divorce lawyers today.
  • If you have received advice to issue your divorce petition in England and Wales, or if you know that your spouse will file in the UK, contact us immediately so we can consider your options in relation to international child contact arrangements.
  • If you have already been served with your spouse's Child Abduction Application, contact us to discuss your options.
  • If you have property in Spain and in the UK or abroad, or if you are concerned about your future financial settlement, let us guide you through the process to achieve a cost-effective and fair outcome.
  • If your spouse has assets outside of the UK, we will also consider your options regarding how best to enforce your Agreed Consent Order effectively in a foreign jurisdiction.
  • If you are concerned about how to protect your assets during divorce proceedings, seek urgent advice from our team of experienced international lawyers.

Divorce and Jurisdiction

Under Spanish law, a divorce in Spain can be granted:

  • At the request of both spouses
  • At the request of one spouse, with or without the consent of the other

Since July 2005, you need only wait three months after the start of your marriage to seek an order for legal separation or divorce in Spain. You can also make an early proposal to your spouse through your lawyers alongside your Spanish divorce petition.

Can You Issue Proceedings in Spain?

Spain — like all EU countries — does not follow the same principles as the UK. The Spanish Civil Code provides that domicile is where a person has their habitual residence, and both domicile and habitual residence carry the same meaning under Spanish law. This means that demonstrating "habitual residence" is sufficient to divorce in Spain under Art. 3 Brussels II Revised (EC Regulation 2201/2003).

However, you must be careful if you wish to challenge jurisdiction as the Respondent in Spain. Do not fall into the trap of replying to or rejecting an offer through your Spanish lawyer, as this may be interpreted by the local judge as your acceptance of jurisdiction — and you may have conceded the jurisdictional race before it has even begun.

Financial Arrangements for Children and Child Maintenance

If your spouse has filed for divorce in Spain, the judge will address the issue of child maintenance at a very early stage. If your spouse has already made an offer regarding child maintenance payments, you should reply and set out your financial circumstances as soon as possible.

We have seen cases in which our client has issued divorce proceedings in the UK before the other spouse has filed in Spain. However, because the spouse detailed their financial circumstances in their Spanish petition proposal, the Spanish judge expected all financial issues to be addressed at that early stage. This can cause significant difficulties, particularly if you are not fully aware of the total matrimonial assets, or if you are unsure whether the offer is fair.

It is also important to note that in Spain, the responding party carries the burden of proof in relation to all financial assets. In our experience, this can be a significant advantage if you are the paying party, but can equally place the other spouse at a serious disadvantage — particularly if they are not fully informed about the total matrimonial finances.

Children Disputes

With regard to parental responsibility in Spain, as a parent you are obliged to provide everything necessary in terms of care and upbringing for your child. Both you and your spouse have equal rights when making decisions that have an impact on a child's life, such as those relating to education and health.

International Child Abduction

Spain is a party to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out methods to secure the return of a child who has been internationally abducted by a parent or family member from one contracting state to another. This includes a child who has been unlawfully removed from their home country.

This generally means that Spain is considered a safe jurisdiction for your children, as all contracting states of the Hague Convention are required to act expeditiously in proceedings seeking the return of a child (Hague Convention, Article 11).

For further information, see: Spain and the Hague Abduction Convention

Finance, Assets, and Disclosure

As outlined above, the disclosure process during a divorce in Spain differs from the Family Procedure Rules in the UK, under which both parties must provide full and ongoing financial disclosure.

In Spain, the burden of proof lies with the party asserting that an asset exists. This can create significant difficulties, particularly for international couples with assets not only in Europe but also in so-called tax havens.

Spousal Maintenance (La Pensión Compensatoria)

Spousal maintenance is not automatically awarded in the event of a divorce in Spain. It will only be granted where one party would otherwise be left economically disadvantaged by the divorce or separation.

This typically arises in cases where one party earns a high salary and will continue to do so, while the other has no career, having given up work to care for any children of the marriage. In such cases, maintenance is awarded to the disadvantaged spouse in order to rebalance the financial position between the two parties.

The amount of maintenance will be determined by the courts. If you are the spouse seeking maintenance, you must be able to demonstrate that you will be left financially disadvantaged by the divorce, both in comparison to your lifestyle before the marriage ended and relative to your former partner's circumstances.

Property Regime

It is common in Spanish law to establish a matrimonial property regime before marriage, though this can also be modified during the marriage.

Community Property is the most common matrimonial property regime in Spain. Under this regime, all assets acquired during the course of the marriage are jointly owned and will be divided equally in the event of a separation or divorce. This regime is likely to apply if no prenuptial agreement has been signed.

Other matrimonial property regimes include the Separate Property regime, which takes into account property acquired before the marriage, and the Profit Sharing regime — a points-based system that allows each spouse to share in the other's profits.

It is important to note that a Spanish judge may compensate a spouse or child disadvantaged by the divorce, irrespective of the regime in place.

Upon divorce in Spain, the matrimonial home will usually be allocated to the spouse who has primary care of any minor children. However, local judges may apply different definitions of "family home" — we have seen a case in which a local judge in Málaga declined to classify a substantial eight-bedroom villa as the family home.

Please also be aware that certain autonomous regions of Spain, such as Catalonia and the Basque Country, operate under different economic regimes.

Prenuptial Agreements

Prenuptial agreements are not always upheld in the UK. However, they are enforceable in Spain. This means that where a prenuptial agreement exists, it will almost always be taken into account in the event of a separation or divorce in Spain — unless the agreement is seriously detrimental to one of the spouses or to any children.

If you require further advice and assistance regarding family law and divorce in Spain, or about issuing divorce proceedings in the UK, please contact our firm.

RDB Abogados Carrer Aragó 284 bis 2º 2ª, Barcelona, 08009 info@rdbabogados.com

This article does not constitute legal advice.

Disclaimer: The information set out in this text represents general guidelines provided by RDB Abogados. Detailed and specific legal advice must be obtained from RDB Abogados before any further action is taken in reference to this content, as explained more fully in the legal notice section of the firm's website.