When a marriage breaks down there are various factors that need to be borne in mind regarding the separation of assets and custody of children. Filing for divorce at court can be done either with mutual agreement or contentiously. You have to have been married for a minimum of three months to file for divorce unless there are extenuating circumstances where it can be proved for example that there has been life threatening behaviour, or constraints regarding moral or physical liberty. You do not have to be separated for any period of time before filing for divorce and the procedure is simple where the divorce is agreed on by both spouses.
What documents have to be provided in divorce cases?
- Certificate of enrolment on the town census (Certificado de empadronamiento) of at least one of the spouses, the demand will be presented in the place where the spouses are inscribed. If there is no enrolment then it is possible to present a copy of the resident’s certificate issued by the foreigner’s department of the police.
- If the marriage was celebrated in Spain a ‘Certificado literal de matrimonio’, issued within the last three months by the Spanish Civil Registry. If the marriage was celebrated abroad Original Marriage certificate and if the documents are foreign, then they have to be endorsed with an apostille (Hague Convention for the legalisation of documents) and translated by an official translator.
- Birth certificates of the children, if any from the marriage. Equally these have to be endorsed and translated where necessary.
- If there was a previous Judicial Separation then a copy of the separation sentence should be provided.
- If there are official documents regarding any premarital agreement then a copy of these should be provided. If the agreement was signed abroad then it also has to be endorsed and officially translated.
- It is necessary to provide an inventory of the matrimonial assets and documents accrediting debts.
- It is also necessary to provide a power of attorney in favour of attorneys at law in the place where the procedure is celebrated. The power of attorney can be sent abroad by the lawyer in charge of the case, to be signed before a Notary Public, although this document also needs to be endorsed with an apostille to be valid. Any document being used officially in Spain has to be in Spanish or has to have an apostille and an official translation by a sworn translator.
What are the legal requirements that have to be satisfied to be able to begin divorce proceedings in Spain?
At least one of the following has to be complied with:
a) Both spouses are Spanish nationals wherever they are residents.
b) The plaintiff is a Spanish national and resident in Spain.
c) Both spouses are foreign nationals and residents in Spain.
d) The defendant is a foreign national and resident in Spain.
Residency can be accredited in different ways, for example if you have a residence card ‘tarjeta de residencia’, or nowadays residence certificate, if it has expired then the inscription at the town hall where you reside can be provided. In general, the criteria are that you remain more that 183 days per year in Spain.
What Law is applicable in divorce cases?
According to the article 107.2 of the civil code it is determined as follows:
The separation and divorce is regulated by the common national Law of the spouses at the time of the presentation of the demand; if there is no common nationality, then by the law of the common habitual residence of the couple at that said time, and failing this, by the law of the last common habitual residence of the couple if one of the spouses still habitually resides in this place. In any event Spanish Law will be applied when one of the spouses is Spanish or if one of the spouses habitually resides in Spain according to the following suppositions:
a. That none of the previously mentioned laws apply.
b. If in the demand presented to the Spanish court, the divorce is filed by both spouses or by one of the spouses with the consent of the other.
c. If the laws indicated in the first paragraph of this section do not recognise the separation or the divorce or they are done in a discriminatory manner or contrary to public law and order.
It is necessary to determine the marital regime of the spouses, for example in the UK usually the couples are married under the regime of separation of assets. In the past in Spain the most common marital regime was that of joint assets, although nowadays the majority of couples have a separation of assets. Joint assets are where property or money acquired by either spouse after marriage belongs to them jointly. Separation of assets is where the property or money acquired by either spouse after marriage belongs to that spouse alone. The existence of a written premarital agreement signed by both parties either before the marriage or just after the marriage will usually determine the regime applicable.
Provisional measures can be requested by the person filing for divorce even before it is lodged and this is done so that the current situation of the parties concerned is maintained. These include custody, injunctions or restraining orders and financial security. When these provisional matters are presented before the court, the marriage certificate, birth certificate of the children and any other pertinent documentation have to be presented.
The judge will determine the measures which are normally brought before him either prior to the process, where you will need to prove the urgency for the measures, or simultaneously to the process. The children are an important factor and their welfare has to be considered carefully. Normally the provisional measures will state who has custody of the children and the visitation schedule for the other parent along with any child support. The use of the family dwelling is normally given to the parent who has custody of the children. The provisional measures will also establish the financial matter of family expenses and alimony or allowances. The spouse can leave the family home without being accused of abandonment if within the following 30 days from leaving he files for divorce, separation or nullity and/or requests provisional measures.
There are exceptions for example where domestic violence is concerned. Any victim of domestic violence should report the matter immediately to the Guardia Civil and seek medical attention. The medical report may be used in court at a later date. Once there is a decree absolute, or a definitive sentence for the divorce, then the spouses are free to remarry. This will also mean that any power of attorney given to the other party will be extinguished but the divorced couple maintain their parental responsibilities regarding the children.
Mutual Agreement Procedure:
In cases where the couple decide to separate by mutual agreement, it is possible for them both to use the same Lawyer and the same Attorney at Law to represent them. In these cases the lawyer will prepare a divorce or separation settlement called a “convenio regulador”, which outlines the rights and duties of the spouses in relation to each other and regarding the children, for example visitation rights for the children, the use of the family home and maintenance allowances and alimony. The document has to be confirmed by both spouses in court. If the document is not agreed on by both spouses a contentious procedure will have to be filed and the mutual agreement file will be closed. If the document is agreed on and there are minors concerned, then it is sent to the Public Attorney. The Public Attorney will make sure that mutual agreement document signed by the spouses does not contain anything that is detrimental to the interests of the minors.
Once the Judge has the report he will dictate the sentence and both spouses will be obliged to conform to the terms in the covenant.
Is it possible to request any change in the terms approved in the covenant?
Yes. At any time it is possible to request a change in the terms as long as it can be proved that the circumstances have changed from when they were dictated. To do this a judicial procedure will have to be initiated to modify the terms.
The Contentious Procedure:
The documentation that has to be presented is the same in both cases, except that in this procedure there is no divorce or settlement agreement. When the divorce is contentious it is the court who will decide the aspects which would have been in the Separation Settlement.
There is no need to have a ‘guilty party’ in divorce proceedings, and therefore there is no need to accredit facts like for example infidelity, disregard of conjugal duties or any other cause; there is no sense in including information in the procedure that could harm future relations between the parties, especially where there are children involved.
The contentious procedure can be converted into a mutual agreement procedure at any time prior to the sentence being determined, it is necessary to present the settlement agreement and an application for the change of procedure.
For both the separation procedure and the divorce procedure you have to be represented by a Lawyer and an Attorney at law. Once the sentence is passed it will then have to be registered with the Spanish Civil Registry.
However in spite of the above, every case is unique and therefore the advice of a reputable Spanish Lawyer is always best, and if you were married under the regime of separation of assets then a Lawyer with knowledge of, and experience in, International Law is the one to choose.