What you need to know about

Divorce In Spain
Legal Jurisdiction
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Legal Note - It should be remembered that the application of Spanish law varies considerably according to region and the circumstances of each individual and so this report can be treated as a general guide only and not as a substitute for qualified legal advice regarding any particular situation. Responsibility for acting on foot of this guide alone is entirely personal and no liability can be accepted by myAdvocate Spain. To get advice on your specific situation from expert legal practitioners in Spain please see the end of the guide.

Contentious Divorce Spain I Legal Jurisdiction

As discussed in the previous report on Express Divorce, an application there is made normally by both of the spouses (or by one spouse on behalf of them both) as there is a tacit agreement regarding the divorce settlement child custody, joint assets, alimony etc. However, it may be the case that agreement does not exist, not even insofar as getting divorced is concerned, never mind more detailed issues such as division of matrimonial assets. We refer to this situation as a contentious divorce which usually begins with one of the spouses making the initial divorce application. The other other spouse is notifiedd in due course. Of course, we are concerned here with divorce within a Spanish context but involving spouses often from different countries. This throws up the possibility of other countries' laws becoming relevant to the situation. In fact, the location of the initial divorce application can become a critical issue. This is because the question of which legal jurisdiction applies in international divorce cases can affect greatly the divorce settlement that is reached. For example, English divorce law can be quite different to Spanish law with regard to maintenance or alimony provision. While a couple who have habitually resided in Spain during the course of their marriage could be expected to have Spanish law applied, this is not always the case. It is therefore important to address at the outset the issue of which country has jurisdiction to process a divorce application involving spouses of different nationalities or who are resident in different countries. We will then continue with a comparison of the application of different rules by different jurisdictions.

Which legal jurisdiction applies?

European Regulation 2201/2003 sets out the rules that determine which country has jurisdiction to hear 1

and determine a divorce case which is any country where:

the spouses are habitually resident, or the spouses were last habitually resident, and one still resides there, or the respondent is habitually resident, or in the event of a joint application, either of the spouses is habitually resident, or the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her "domicile" there, or Both spouses are domiciled

As can be seen from these rules a divorce petition may be considered to be filed correctly in more than one jurisdiction. Where a petition for divorce is petitioned in more than one country then the 'first-pastthe-post' principle applies which has of course permitted the practice of forum shopping to flourish. Forum shopping is where a spouse will seek to file for divorce in the jurisdiction that offers them more advantageous laws than their partner. So what are the practical implications of succeeding in having a divorce petition heard in one jurisdiction rather than another? Well, this rather depends on which jurisdictions we are comparing.

Comparison of Jurisdictions
1) General Provisions: In Spain there are two possible 'types' of marriage that which is referred to as 'sociedad de gananciales' which most equates to what we would consider typical in AngloSaxon marriage arrangements, and 'separacin de bienes' which signifies an intention on the part of the spouses to maintain a separation in the ownership of assets throughout the marriage. The effect of the above is that in a 'sociedad de gananciales', all goods, assets and benefits (except so-called 'private' goods) derived during the marriage, regardless by which spouse, are considered to belong to both spouses equally and which are, upon a divorce, divided equally. 2

Examples of such 'goods, assets and benefits' would be a person's salary or benefits of a business owned by one of the spouses. Conversely where the regime is considered to be 'separacin de bienes' then any assets accumulated during the marriage are considered to belong to one or other of the spouses insofar as their respective funds were used to effect the purchase. Even within the 'sociedad de gananciales' regime certain assets are considered 'private' and would not be considered as divisible between the spouses upon a divorce. An example would be an inheritance left to one of the spouses specifically. Also, any assets obtained before the marriage remain distinct from the matrimonial 'pot' and never form part of the matrimonial assets. So, given the possible exceptions that exist in Spanish law, on balance a Spanish court considering which assets should form the matrimonial 'pot' that is to be divided between the spouses upon a divorce is likely to determine that it is smaller than an English court would conclude.

2) Spousal maintenance payments: the courts in England & Wales are world renowned as being more generous to the spouse with less assets. The reason is that maintenance payments there tend to be open-ended with the objective being to put the couple in the place they would be if there had been no dissolution of the marriage whereas in Spain the objective is to return the spouses to the position they were in before the marriage took place. This can often mean that in England & Wales the spouse with less assets or income can obtain 50% or more of the wealth of the richer of the two as well as a percentage of all future income. In Scotland maintenance payments are normally restricted to three years from the time of the divorce. 3) Disclosure requirements: When a divorce process is initiated one important aspect can often be the obtaining of a precise inventory of the assets owned by the other spouse for obvious reasons. It may be that this spouse would resent the obligation to hand-over such information and adopts delaying tactics or simply offers incorrect or incomplete information. In England and Wales there is a full and frank financial disclosure requirement that unless respected by each party can result in prosecution for perjury. In Spain there would appear to be less stringent enforcement of the requirement to effect a full financial disclosure of assets and this can obviously impact strongly on the award of any compensatory payments. It should be noted that according to Art. 107 of the Spanish Civil Code, where both spouses have a common nationality then this should be the law applied to the proceedings. So an English couple could apply for a divorce in Spain and, while being heard by a Spanish court, have English law applied. Alternatively, they could decide to simply apply Spanish law where both parties agree. 3

While only offering an overview the previous paragraphs serve to illustrate that the location chosen to file for the divorce can have a dramatic effect on the outcome of the divorce settlement. Following the European Regulation on the matter, it is potentially open to a spouse who is domiciled in the UK to file a divorce petition if they return there for a period of six months even though they had married in Spain and lived a number of years there. It may certainly be in their financial interest to do so where they own less assets or have a substantially lower income than their spouse.

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