It’s not a happy topic wherever you are, but getting a divorce in a foreign country can seem more daunting still. Andalucía Lawyers have put together this guide to getting divorced in Spain for expats to help you better understand the process and the options available to you.
I’m not Spanish, can I still get divorced in Spain?
As an expat you can obtain a divorce in Spain if you and/or your spouse is a Spanish resident, or if your other half is a Spanish national.
Do I have to wait a certain time after getting married to be able to apply for a divorce?
You may divorce by mutual agreement if you have been married for at least three months. However, in cases of domestic violence (whether physical or psychological) the victim can apply for divorce before this three month period is up. It’s not necessary to have been legally separated before filing for a divorce.
Am I legally obligated to reveal the motive of our separation?
No, divorce law in Spain is no-fault. This means that it is not necessary to cite a reason in order to obtain a divorce.
I want a divorce but my partner refuses to give their consent, can I still get a divorce in Spain?
Yes, you can. In Spain it is not necessary for both parties to apply for a divorce, although if your partner doesn’t want the divorce it will be a longer and more complicated process. Read more about this below.
What is the process for getting divorced in Spain?
There are two main types of divorce in Spain:
1) Uncontested divorce
This is when both partners mutually agree to the divorce. This is the fastest and most straightforward way of obtaining a divorce in Spain; if no unforeseen issues arise the process can take as little as a few weeks.
Choosing a Lawyer
You will need a Spanish lawyer and a legal representative (procurador) to act on your behalf. If both you and your partner agree on the divorce and all its terms, there should be no problem in you both using the same Spanish lawyer. Your solicitor will be able to recommend a procurador. Contact us at Andalucía Lawyers to enquire about our services.
Along with your petition for divorce, you must also present the judge with the proposal of governing convention (convenio regulador), in which you state what you have agreed on together regarding the following points:
- The amount, if any, of compensation allowance or alimony to be paid by one spouse to the other.
- In the case of shared children, the cohabitation and custody arrangements for these, including visitation rights of the non-custodial parent.
- The sum that has to be paid for the children’s alimony.
- Use of the family home.
- The manner, if any, in which the spouses continue to contribute to family expenses.
The marriage certificate and the birth certificates of any children.
The power to approve the governing convention and grant a divorce rests with the judge.
2) Contested divorce
This is when only one partner files for a divorce without the consent of the other. The court procedure in these cases is longer and more complex, taking anything from a few months to over a year.
Choosing a Lawyer
You will need a Spanish lawyer and a legal representative (procurador) to act on your behalf. If you and your partner don’t agree on any part of the divorce, under no circumstances should you use the same lawyer. It is important to employ a trustworthy and independent Spanish solicitor who will negotiate in favour of your interests. Your solicitor will also be able to recommend a procurador. Contact us at Andalucía Lawyers to enquire about our services.
Once again, the petition for divorce and the proposal of governing convention must be presented to the judge to apply for a divorce order, along with the marriage certificate and the birth certificates of any children. If you and your spouse cannot agree on the contents of the governing convention your respective lawyers will have to negotiate between themselves, perhaps also requiring third party evidence. In the meantime, temporary measures may be put in place concerning issues covered in the governing convention, such a child custody and support.
The judge’s sentence concerning the divorce order will be filed to the Spanish Civil Registry, after which it can be appealed against. One or both spouses can apply for amendments to the sentence which will be decided by a subsequent judicial dictum.
Custody of Children
Custody is awarded to the mother in most cases, especially with young children, the exception being if it is proven that this would not be in the best interests of the child/ren. Lately the Spanish courts have increasingly come to support joint custody when both partners wish to share visitation rights.
Spanish courts generally only award alimony in situations where one of the spouses will suffer a severe loss of income from the divorce, for example if they have given up a career to care for the children with the other spouse taking on the role of sole or main bread-winner. The amount of alimony awarded varies from case to case, but generally falls between 15 and 40 percent of the higher income.
The Division of Assets
Spanish law regarding the division of assets in a divorce is determined by the local law of the couple’s place of residence. In Catalonia, Aragon, Navarre, Balearic Islands and the Basque Country, for example, Separación de Bienes generally applies. This means that each partner keeps anything they owned before the marriage, and any joint purchases during the marriage are divided according to each individual’s investment in buying them. Court rulings have also attributed a financial value to non-monetary contributions, such as taking care of the home and raising children.
In the other Spanish regions, including Andalusia, Sociedad de Gananciales generally applies. This means that all assets acquired during the marriage are considered to belong to both partners equally, unless they are deemed ‘private goods’. Dual ownership would apply to rental income, businesses and goods bought with shared accounts or investments.
Remarrying Following a Divorce
You are legally permitted to remarry once a divorce is granted. Upon doing so, you will immediately lose any marital inheritance rights and widow/er’s pension rights. However, any obligations in regard to children from your previous marriage will remain unchanged.
Are you an expat getting divorced in Spain or thinking about it? Whether you want Andalucía Lawyers to take care of your divorce for you, or just discuss your options with us, you may contact us in complete confidence to arrange a consultation. We have offices in Granada and Sotogrande and can also provide consultations over the phone or via the Internet.