Divorce in Spain – planning and first steps

In cases of irretrievable breakdown of a marriage sometimes the only solution is to file for a divorce. Spain has one of the most comprehensive and fair family laws in Europe making the process quick and easy, moreover Spanish law doesn’t require stating a reason for the divorce and the process can be initiated by a single party.

Step 1 – Determining if you can get divorced in Spain

Divorce can be simple or complex depending on various factors. If the spouses have different nationalities, are resident in different countries or got married in a third country, it might be difficult to determine if you can get divorced in Spain and which national law will govern the divorce. These cases were simplified by EU directive 1259/2010 that gives a clear procedure for determining the place of divorce and the applicable law. Unfortunately many EU countries, notably Ireland, the UK, Sweden and Denmark decided to opt out from this directive.

In general the divorce can be filed in Spain if:

• Both spouses are Spanish nationals wherever they are residents.
• The plaintiff is a Spanish national and resident in Spain.
• Both spouses are foreign nationals and residents in Spain.
• The defendant is a foreign national and resident in Spain.

A Spanish lawyer with experience in international family law will be able to assist you, and determine if it is to your advantage to be divorced in Spain.

Step 2 – Getting professional help

In order to start the process in Spain it will be necessary to file a process in court (it will be possible soon to file the process with a Spanish Notary, but the new law has not yet been passed). For this you will have to engage the services of a lawyer who will follow up on the process. The lawyer will utilise other professionals such as a “procurador (juridical figure that won’t take active part in the process).

In cases where there are assets or children in common between the spouses, it will be necessary to agree on a way to move forward.

Step 3 – Thinking about a divorce settlement agreement

The settlement agreement (“convenio Regulador” in Spanish), is a document that will define the rules of interaction between the two spouses after the divorce. It’s an extremely important document especially if there are children from the marriage. These kinds of topics will have to be included:

• Custody of the children: When custody is given to one of the spouses the other spouse will have the right of visitation and communication. The document will determine the rules and frequencies of these interactions. When the custody is shared, you will have to pay attention to the specific regional laws that are applicable.
• Use of the family residence: In general the spouse that has custody will have the right of the use of the family residence until the children come of age. Here as well there are variations depending on local regional laws.
• Children maintenance: the amount of money that one of the spouses will pay to the other for expenses relating to the children
• Other possible payments: compensation for loss of income from one spouse to the other
• Separation of common assets

This document will be extremely simple if there are no children involved and no common properties.

Step 4 – Negotiating an agreement between parties

A divorce in cases of mutual agreement is a better option than a contentious divorce where a judge will have to impose a resolution between the parties. The most notable advantages are:

• You are in control of the settlement agreement: You can negotiate the settlement agreement with your spouse with the help of a lawyer, while in a contentious divorce, the judge will impose a “convenio regulador”
• Cheaper: In a contentious divorce each party will need a lawyer, while in a case of mutual agreement you will need only one lawyer. Additionally lawyers’ fees tend to be higher for contentious divorces as it requires much more work.
• Faster: A faster divorce is more likely to take a lighter emotional toll.
• No winner or loser: A mutual agreement divorce lessens the feeling that there is a winner and a looser. It is important to keep in mind that if there are children from the marriage, the spouses will be forced to interact with each other after the divorce until all children come of age, therefore it is better to keep an amicable relationship.