Divorce in Spain

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Divorce in Spain InfoPoint

Below you will find answers to some of the most common questions regarding divorce in Spain. Of course,  family law is a very broad topic as it impacts on many of the most important personal and financial relationships that  people tend to have.

Of particular interest to many visitors to the website is the 'international' aspect to such matters. An attempt has therefore been made to provide information in this light, though there can be no replacement for obtaining  advice from a professional practising in this field.  

If at any point you feel the need to speak to a professional, just contact myAdvocate Spain by phone, email or instant chat.

What is Divorce and what is it's effect in Spain?

In technical terms, divorce in Spain is one of the legitimate methods by which a legally valid marriage may be ended. In Spain there is no requirement to allege any cause or reason, though there must be a judicial decree and the marriage must have lasted no less than three months  before proceedings were initiated.

The main effects of a divorce in Spain are that, by bringing the marriage to an end,  any joint financial liabilities of the couple as against third parties are terminated while also noteworthy is the end to the right to inherit the assets of an ex-spouse upon their death.

Who may request a divorce in Spain and how does this affect proceedings?

Both of the spouses may request divorce proceedings together, in which case it is known as a divorce by ‘mutual accord’ (more commonly as an  Express Divorce).

Alternatively, one of the spouses alone may request a dissolution of the marriage, in which case it is known as a ‘contentious’ divorce.

The main difference here is one of expense and time. Failure to agree on the divorce agreement in particular may require negotiation and communication between the lawyers and 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 of course always preferable to follow the course of divorce by ‘mutual accord’ wherever possible.

If either of the spouses is not Spanish, how does this affect divorce proceedings?

By virtue of European Regulation 2201/2003, a Spanish court may adjudicate divorce proceedings involving anyone resident in Spain. Accordingly, where at least one spouse is habitually resident in Spain, the Spanish courts may hear the case.

As far as the applicable law, Articles 9.2 and 107 of the Spanish Civil Code establish that the applicable law is, in the first place, the law of the country of which both spouses are nationals. 

Where there is no common nationality, the applicable law is the law of the state in which both are habitually resident at the time of divorce.

Accordingly, a married couple composed of a Spanish woman and a British man would have the Spanish law of divorce applied where both are resident in Spain. Meanwhile an Irish couple who apply for a divorce in Spain may have Irish law applied or request to have Spanish law applied should they wish.

Where there is neither common nationality nor country of common residence, the law of the state in which the couple were last both habitually resident is applied.   

Is it necessary to travel to Spain for divorce proceedings to be concluded?

No. It is of course necessary for the parties to communicate and a number of forms and documents need to be signed, but this can be managed by post. 

Ratification of the divorce agreement before the judge normally requires the presence of both spouses. That said, if one or both of the spouses is no longer living in Spain, this can be accomplished by issuing a power of attorney in favour of the procurador.This power needs to be specially arranged.

What happens with regard to custody of children following divorce in Spain?

The following process applies regardless of whether the parents of the children are unmarried or married.

The parents can agree via a ‘convenio’ or written agreement on issues such as child custody and visitation rights. A judge will review any agreement and adjust as required, taking into account the best interests of the children. A judge may make an order awarding custody to one of the parents, or to both in an order of ‘joint custody’.

In most regions of Spain it is normal to award custody to one of the parents, typically the mother. However in some regions it is now law that the judge must consider the awarding of ‘joint custody’. 

More information about the standard rules in your area of Spain can be found in the section ‘Family Law by Region’ on the left hand side of this page.

For more information see Child Custody In Spain.


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