The divorce procedures in Spain were firstly approved in 1981, this country being one of the last European states in which this type of legal act was introduced and, since then, the rate of divorces increased to 0.9 per 1,000 people in 2000. However, it is important to know that the divorce rate increased at a fast pace, reaching 2.2 divorces at a population of 1,000 persons (at the level of the year 2010).
A local or a foreign citizen who wants to divorce in Spain doesn’t have to present a specific reason in front of the court, because it is necessary to file only a petition signed by one of the spouses in order to get divorced. The divorce can be done by mutual agreement, if the spouses are married for at least three months. The divorce procedure can be performed in Spain, if one of the spouses is Spanish and the other is a foreigner.
Our team of divorce lawyers in Spain can assist those who are interested in getting a divorce in Spain and can present the steps that are involved in this procedure. Our lawyers can present the legislation regulating divorces in Spain and may also offer information on the rights and obligations the parties have once the divorce is completed.
The following video offers a short presentation on the Spanish divorce procedures:
After the divorce is finished, the two spouses can get married and they are not obliged to wait for a specific period of time, as it is required in other states. Our team of divorce lawyers in Spain can assist local and foreign persons with more details on the steps involved in a divorce procedure.
How can one divorce in Spain?
As mentioned at the beginning of the article, a person who want to file for divorce does not need to provide a specific reason. The procedure can be easily initiated by one of the spouses, under the new regulations of the Law 15/2005; our divorce lawyer in Spain can present the provisions of this legislation.
In order to start the divorce procedure, few conditions have to be met though, such as: the parties can request the dissolution of their marriage only after three months have passed since they got married (this is applicable if the divorce is requested by both spouses, by one spouse, or by one spouse without the consent of the other spouse) or they can request to start this procedure at any given time after the marriage was registered, if there is a real risk regarding one of the spouses.
Where can one apply for a divorce petition in Spain?
Most of the divorce petitions have to be filed with the Court of First Instance and this is applicable in the case of a divorce petition, marriage annulment or legal separation. The legislation stipulates that the parties can address to various courts of first instance, as follows:
the court registered in the city/region where the marital home is located;
if the parties live in two different regions, they can choose the court located in the region of their last marital home or in the place of residence of the respondent;
if the above mentioned situations do not apply, the parties can address to the Judge of First Instance located in the region where the petitioner has his or her domicile;
if the petition is filed by both parties, they can address to the judge located in the region where they have last lived as a couple;
they can also address to the judge in the domicile of either parties.
Alimony and custody of children in Spain
If a couple has children, one of the spouses will pay a certain sum of money – the alimony, to the other party, in case the beneficiary has a real economic disadvantage after the divorce. Even if the two parties are financially independent, the parent who has received the custody is entitled to benefit from the alimony.
The parent who is not taking care of a child will pay generally between 15 and 40% of his or her income to the other parent who received the custody of the child. The custody is awarded to the mother in most of the cases, if she is capable of taking care of her children, but there are cases in which the parents will have a joint custody.
In case of a divorce in Spain, the judge will decide regarding the division of assets of the two spouses. The rules for these divisions are different from region to region. The spouses in Catalonia, Aragon, Navarre, Balearic Islands and the Basque County will keep the assets they owned before the marriage and, in case of goods they purchased together during their marriage, these will be divided according to the contribution of each part.
Even if a woman has a lower income than her husband, the daily duties performed in the house, such as raising children, housekeeping and so on, have a financial value from a legal point of view, that is calculated by the court when deciding how to divide the assets. Our divorce lawyer in Spain can give you more details about this matter.
In other Spanish regions than those mentioned before, the goods that are bought during a marriage are considered to be the property of both spouses, set out in equal parts. Persons who are interested to know more on the legislation referring to the division of assets can receive more details from our Spanishlawyers, who can offer legal advice.
Who can get divorced in Spain
The divorce procedure in Spain is available for various categories of cases, such as: both spouses are Spanish residents, both spouses are Spanish nationals, but they have their residence in another country or one of the spouses is a citizen of another country; our divorce lawyer in Spain can provide in-depth information on how the divorce procedure must be completed in each of these cases.
Types of divorces in Spain
In Spain, there are two types of divorces, as follows: uncontested divorce and contested divorce. The first type of divorce is the one in which the parties mutually agree on the dissolution of their marriage. The parties will have to provide several information on their current relationship by completing a governing convention, which will cover various issues.
Some of the basic matters are the following: custody arrangements referring to the children of the couple, the alimony value, the compensation allowance which may be provided from a party to the other. In such cases, the divorce may last few weeks.
Divorce by mutual agreement
In order to simplify divorce proceedings, Spain passed a new law in 2005. Law No. 15/2005 provides for no statutory reasons in order to make divorce by mutual agreement easier. Divorce by mutual consent is referred to as direct divorce in Spain. This type of divorce can be requested by both spouses or by one of them with the consent of the other. In order to obtain the divorce, the following conditions must be fulfilled:
the couple must have been married for at least 3 months,
in case of threats to the physical or moral integrity of one of the spouses, divorce will be applied immediately.
Legal separation is another alternative to direct divorce in Spain. Even if achieved under the same circumstances, legal separation in Spain means that the couple will remain married but the spouses live separately.
How to file a petition for divorce by mutual consent in Spain?
A Spanish Court of First Instance can receive a request for divorce or legal separation in Spain by mutual agreement under the following conditions:
if both spouses have a Spanish nationality,
if both spouses live in Spain,
if the spouse not filing for divorce lives in Spain.
Foreign citizens may apply for direct divorce in Spain if at least one of them has a residence permit and lives most of the time here. A foreign citizen may also apply for divorce by mutual agreement if they have lived in Spain for at least one year after the marriage.
Our divorce lawyer in Spain can provide you with more information about filing for divorce or legal separation by mutual agreement.
Documents to be submitted in case of divorce by mutual consent in Spain
The parties involved in a divorce must appeal to the services of a Spanish law firm as the petition they will file with the court must be signed by the attorney. The request must be accompanied by the following supporting documents:
the marriage certificate,
the children’s birth certificates, where applicable,
the documents related to the cause of divorce,
documents related to the financial situation of the parties,
a proposal for a settlement agreement, if a joint petition has been filed.
Types of judicial separation in Spain
The legal environment available in this country prescribes two types of judicial separation in Spain:
• agreed separation; • non-agreed separation.
The agreed judicial separation in Spain is a process in which both parties are interested in solving the separation in an amicable manner. The parties will receive the right of living separately, but it is important to know that the legal decision can be reversible if the parties may conclude so.
The non-agreed separation in Spain can be enforced when the couple has been married for at least three months, but in the situation in which one of the spouses is threatened by the other spouse in terms of physical integrity, liberty and other similar aspects, the Spanish legislation prescribe that the period of three months is no longer compulsory.
This procedure can be time-consuming, as the parties will have to come to a term in respect with various matrimonial aspects, such as:
• property; • custody; • alimony; • rights of one of the parents to visit the couple’s children.
Our divorce lawyer in Spain can offer assistance on the steps involved in a non-agreed judicial separation.
Legal grounds for separation in Spain
A Spanish couple can file for judicial separation in the following situations, as prescribed by the Spanish Civil Code, Chapter VII, Article 82:
• abandonment of the family; • marital infidelity; • abusive behaviour; • infringement of the marital obligations; • sentence to imprisonment for a period longer than six years; • alcoholism or drug abuse; • cessation of marital life.
What is the divorce rate in Spain?
Since the right to legally separate from a partner was approved in Spain, the divorce rate increased at a rapid pace. It is important to know that the country has one of the highest rates of divorce in the European Union (EU). With regards to the statistics on this subject, the following data is available:
in 1981, when the divorce procedure was approved by the local institutions, there were only 9,483 divorces;
in 1990, the number of divorces increased to 23,191 cases, while in 2000, Spain registered a total of 37,743 divorces;
the highest number of divorces during the 2000-2010 decade was registered in 2007, when there were a total of 125,777 divorces;
between 2010 and 2017, the highest number of divorces was in 2012, accounting for 104,262 cases;
since 2014, when there were 100,746 divorces, the divorce rate slightly decreased;
in 2017, the country registered a total of 97,960 divorces.
According to the data collected by the National Institute of Statistics, in 2006, the highest divorce rate was registered in that year in the case of couples who were married for less than a year. As presented earlier, Spain has one of the highest divorce rates recorded at the level of the EU. For instance, in 2016, Spain occupied the third rank on this matter, after Portugal and Luxembourg. It had a divorce rate of 56 divorces per 100 marriages.
What is a prenuptial agreement?
The prenuptial agreement is a written document that stipulates the manner in which the parties will handle a divorce, in the situation in which such an event might occur over the years. It stipulates the way in which the couple’s assets will be divided in this particular situation. A prenuptial agreement is considered a useful legal tool which can prevent many other issues that can derive from a divorce.
It can be drafted taking into account various financial aspects which can also relate to the child’s alimony, in the case the spouses have children. Overall, the document can facilitate the process of getting divorced in Spain, as numerous aspects have already been agreed upon. Our divorce lawyer in Spain can provide legal advice on this matter.
Legal aspects related to Spanish prenuptial agreements
When drafting a prenuptial agreement, it is important to know that the document will be enforced by the Spanish authorities once the divorce procedures are started. However, this may not be the case if the document is not favourable to the couple’s children or to one of the parties.
A prenuptial agreement in Spain follows the rules and regulations imposed by the European Union’s Council Regulation 1259/2010. This refers to the rules of law that can be applied in this case and there are several options, prescribed by the Article 5:
• the rule of the state in which the document was signed; • the rule of the state in which one of the party (or both) are habitually residents; • based on regulations applicable in the country where the persons are national citizens.
The contested divorce refers to the fact that only one of the parties has filed a court petition. Usually, this type of divorce may take up to more than one year, as the spouses may not agree on many issues. For more details about the divorce procedures, please contact our law firm. Our divorce lawyers in Spain will offer legal consultancy or legal representation in front of local courts throughout all the stages of a trial.
Federico Richardson Alborna is the founder of Lexidy Law Boutique SLP and he is prepared to provide legal assistance to both local and foreign clients who want to divorce in Spain. Considering his expertise in the real estate law, those who need to divide their assets during a divorce can request information from our lawyer. Foreigners who are married to a local citizen and who do not speak Spanish can address to our lawyer, as he can provide legal advice in English as well.