Divorce in Spain is a relatively recent development, having only been introduced to the country in 1981. Prior to that, ending a marriage was only possible by annulment which was a lengthy process only accessible to you if you were reasonably wealthy.
Now, divorce in Spain is more common, and follows some of the same procedures as divorces in other European countries. Here we explain issues relating to divorce in Spain, including the grounds for divorce, how financial settlements work and how child custody is determined.
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Divorce laws in Spain
There are two methods of divorce in Spain:
- Uncontested divorce
- Contested divorce.
If you both agree to the divorce, then it is possible for you to divorce in Spain by mutual agreement. Spain operates a ‘no-fault’ approach, meaning that you don’t have to cite reasons for the breakdown of your marriage.
There is no minimum time that you must have been separated to petition for an uncontested divorce, although you must have been married for three months. The exception to this three-month rule is if there is a proven risk to your life, or your physical or moral integrity.
To gain a divorce by mutual agreement you must agree on a financial settlement and arrangements for your children. This document (the convenio regulador) must cover issues such as:
- Residence, custody and contact arrangements for your child
- Any amount of child maintenance that will be paid
- Any maintenance or alimony that will be paid by one spouse to the other
- What will happen to the marital home.
A judge will grant your divorce and approve the convenio regulador.
If you don’t agree on the marriage, or you can’t come to an agreement on the contents of the convenio regulador, than you may have to go through a court procedure.
A contested divorce in Spain is a lengthy process and can involve a lot of negotiation as well as the production of third-party evidence.
Initially, interim measures may be put in place for child custody, child maintenance and alimony payments, pending the outcome of the court process.
Child custody laws in Spain following divorce
Historically, mothers in Spain have been awarded custody in most cases. However, in recent years courts have been keen to consider joint custody where appropriate.
Shared custody can be awarded if you request it in your convenio regulador or if you agree it during court proceedings. The court can also award shared custody if it believes it will protect the best interests of your child.
Both parents retain the ability to decide on important matters regarding your child, even if only one of you has been awarded custody.
Spain is a signatory to the Hague Convention on Child Abduction and enforces the Brussels IIa regulations. This means that if your child is taken out of Spain without your consent, you can apply to the authorities in another Hague Convention country to have your ‘abducted’ child safely and swiftly returned.
Similarly, if your child is taken from a Hague Convention country to Spain, you can expect authorities to act quickly to ensure the return of your child.
Financial settlements on divorce in Spain
During divorce proceedings in Spain, the court system can only deal with applications for:
- Alimony (called ‘compensation’).
This means that the court can only make two orders:
- Compensatory pension (pensión compensatoria)
- Household work compensation (compensación por trabajo para la casa)
The divorce proceedings can also deal with the use of the marital home.
If the divorce results in an imbalance between the spouses, then you may be entitled to receive maintenance. This is not designed to provide financial support for you to meet your needs, but to redress any imbalance that exists after the divorce.
When deciding on this maintenance, the court will consider factors including:
- Your age and health
- Duration of the marriage
- Any agreement you have already made between yourselves
- Your employment history and prospects.
The court may issue an order for payments over a fixed term, often for a specified period. Any right to maintenance will end if you remarry, or if the cause justifying the payments is removed.
Household work compensation
As the divorce procedure in Spain doesn’t consider the division of any property or assets, ‘household work’ generates a right to financial compensation following the breakdown of your marriage.
If you have looked after your home and/or family while your spouse has gone out to work, the court can compensate you, taking into account the earnings of your spouse.
The court will decide on the amount you will be awarded and the way in which this is paid. There are specific rules under Catalan law.
Household work compensation is treated separately to compensatory pension as it aims to rebalance your earnings during the marriage, rather than any imbalance you find yourself in after your marriage has ended.
Split of assets on divorce in Spain
The division of assets is not dealt with through the divorce proceedings in Spain. How property and assets are split will be decided by whereabouts in Spain you live.
Separation of assets (separción de bienes)
If you live in the Basque Country, Catalonia, Aragon, Navarre or the Balearic Islands then you will live under a ‘separation of assets’ system.
You retain ownership of any assets you brought to the marriage, but any joint assets are divided by the contribution made by each of you.
Community of joint assets (sociedad de gananciales)
In the rest of Spain, a ‘community of joint assets’ system applies. Here, all assets acquired during your marriage are considered to belong to you equally, and so are split equally when your marriage ends.
Assets that are considered ‘in common’ include property obtained through the income generated by the work of either of you, property you bought together, and interest or income gained by common property.
Assets that are not split equally include:
- Anything you owned at the start of the marriage
- Anything you acquired to replace property/assets you brought to the marriage
- Compensation or damages paid to you
- Personal objects that are not valuable
- Items that are essential to your work.
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