Divorce became legal in Spain in 1981. Since then, the divorce rate has been rising. Spain has a mid-range divorce rate in comparison to other European countries. Our skilled Legal team can assist you if you plan to file for a divorce or if you are currently going through a divorce in Spain. In Spain, it is not necessary to have a reason for a divorce. The only requirement is that the couple has been married for at least three months before filing for divorce. In special circumstances, such as proven danger to life or loss of sexual liberty, the three-month rule may be waived.

Eligibility

In Spain, you eligible to file for a divorce if;

• You and/or your spouse are Spanish residents
• You and your spouse are Spanish nationals, regardless of residency (in the case of mutual divorce)

Uncontested (Mutual) Divorce

In these cases, both parties agree to the divorce. Our Legal team will be a valuable asset during an uncontested divorce case, considering there will be contracts covering child custody, alimony, other financial factors, etc. It is important to note that in uncontested divorces of couples with children, a Public Prosecutor controls the agreement. They check that everything is legal and in the best interest of the children involved. As long as there are no issues during the divorce process, uncontested divorces can usually be resolved within a few weeks. 

Contested (Contentious) Divorce

On the other hand, there are cases in which only one spouse wants a divorce. These cases are typically longer and more difficult to resolve. If the two parties cannot agree on terms, lawyers must communicate and negotiate and could potentially need to use third party evidence in the process. The time span of these cases can range from a few months to more than a year.

Child Custody

In Spain, if a divorcing couple has a shared child, there are additional factors that must be considered during the divorce process. An ideal situation involves an agreement about child custody, but we understand that this will not always be possible. In cases where no agreement can be reached, custody will be decided in court.

Child Support

Divorce does not dissolve parental responsibility, considering parents must pay child support. Child support covers expenses such as medical care, food, housing, clothing, and education. If custody is with only one parent, the parent that does not have custody must typically pay the child support. If there is joint custody, the process is a bit different. For example: a fund could be set up in which both parents can withdraw and deposit money depending on when they have custody of their child; or the parent who is better economically can also pay extra money for the child’s expenses; etc.

Child Abduction

In cases that involve a spouse who is not originally from Spain, it is important to know child abduction laws. In order to relocate a child legally, the relocating parent must give notice to the non-relocating parent and get consent. If consent is not given, the relocating parent could attempt to get authorization from a judge. If a parent relocates his or her child to a different country without getting consent or judicial authorization, their child is considered abducted under the law.

ALIMONY

Worrying about finances after a divorce is a normal reaction, but there are ways to make sure that one party is not left economically disadvantaged. Alimony is a financial compensation after a divorce, which is awarded to spouses who become economically disadvantaged because of a divorce. An example of someone who would likely receive alimony is a mother who stayed at home to take care of her children, rather than going to work to further her career. In order to successfully file for alimony, two factors must be proven. First, one must prove that their financial situation has gotten worse due to the divorce. Secondly, there must be evidence showing that they are indeed the spouse that has the economic disadvantage.

The amount of alimony received is decided on a case-to-case basis. This decision is made through either an agreement between the divorcing spouses or the court that presides over the proceedings. Alimony could be a onetime payment, temporary instalments, or, in some specific cases could be permanent instalments. Factors considered when deciding the amount of alimony, a person will receive include how long the couple was married for, the disadvantaged spouse ́s ability to resume working, the income and expenses of each party, and both parties past and future commitment to their family.

DIVISION OF ASSETS

Appropriately dividing up assets after a divorce is an important process. According to the law, assets can be divided in two ways. The way in which your assets will be divided depends on where you live. 

When “separación de bienes” system is used, divorcing parties keep whatever they brought into the marriage. When dividing joint assets, each spouse gets a percentage. This is determined by how much each party contributed to that asset. In these cases, past courts have given financial value to raising children and completing chores around the house.

On the other hand, in the “sociedad de gananciales” system all assets gained during the time the parties were married belong equally to both parties. The only exceptions are private goods. Dual ownership applies to the majority of assets including businesses and items bought during the marriage. Especially interesting is the new ruling of the Supreme Court, Civil Chamber, Judgment May 27, 2019

DIVORCE BY MUTUAL AGREEMENT

This type of agreement must be agreed and signed on every page by both parties. The mutual agreement can be presented after the couple have been married for more than 3 months.

The mutual agreement must outline:

• Childcare and child custody, and how children will distribute their time between each parent.
• How any shared properties will be separated
• Parental authority
• Alimony
• Compensatory pension, which is paid from one spouse to another, should they be in a worse economic position than they were before the divorce. This is not paid in all divorces.
• Settlement of the Matrimonial Financial Agreement. This is not an Agreement in all countries; however, it is usually agreed upon marriage in Spain

If the couple has children, there should also be agreement on the care and custody of the children, and a document outlining the visiting regime for each parent. There should also be agreement regarding childcare costs, including food, clothes and other essentials.

The next stage, once the agreement has been prepared by a lawyer, is to present it to the Prosecution Service. Then, the Judge will decide if they agree with the plans which are set out in the divorce’s mutual agreement. In particular, the Judge will place close attention to the parts referring to minors. The Judges will aim to minimise disruption or harm for the children. Once agreed, the judge will start to dissolve the marriage.

Over time, should the circumstances of either party change, it is a possibility that the divorce settlement can be changed. An example of this is a change in the economic circumstances of either party (e.g. Unemployment).