family law spain

Family Law in Spain

If you’ve decided to become a resident in Spain, get married to a resident in Spain or move here with your family from abroad, family legal matters may affect you at some point. It’s therefore important to have an understanding of the workings of family law in Spain.

Spanish legislation regarding marriage, division of assets, divorce and children is probably very different to the laws in your country. However, despite its differences, the rules are clear cut and follow established procedures. 

To help you understand them, we’ve compiled this comprehensive guide to family law in Spain. In it, you’ll find the following sections: 

  • Context and jurisdiction of Spanish family law – this section explains how the system works and the basis for family legislation. 
  • Marriage – this section looks at the types of marriage that are legal in Spain and their different regimes. 
  • Divorce – this section examines all the legal aspects involved in a divorce including its procedure and maintenance/alimony. 
  • Children – our final section explains the legislation affecting the welfare of children in the event of a divorce. 

Need advice?

At Costaluz Lawyers, we understand that family law in Spain is a complex and emotive subject. As a result, you need objective legal advice from experts who will represent the best interests for all involved. Our team is on hand to provide that advice and support. Just get in touch for a no-obligation consultation.

Table Of Contents
  1. Family Law in Spain
  2. Context and jurisdiction of Spanish family law 
  3. Marriage 
  4. Divorce 
  5. Children

Context and jurisdiction of Spanish family law 

Before we explore the ins and out of Spanish family law for matters such as marriage and divorce, it’s worth taking a look at how Spanish jurisdiction works. In this section, we explain the sources of law, the court system, jurisdiction and the concept of domicile within the context of family law.

Legislation

Unlike some countries such as the UK where jurisprudence is the basis for law, Spanish judges generally use legislation to make their decisions.

In terms of family law for matters such as marriage and divorce, Spanish law applies the Civil Code. Most laws are nationwide, although there are some instances of regional differences, such as in the case of assets on marriage.

Court system

Most medium and large cities in Spain have courts that deal specifically with family law. In smaller locations, it is usually the main court (Juzgado de Primera Instancia) that hears cases of family law. All court proceedings involving family law are private in Spain.

Jurisdiction

For most Spanish nationals and foreign residents in Spain, Spanish jurisdiction applies to family law. However, this may vary in circumstances when international treaties are in place.

Spanish jurisdiction depends on the aspect of family law, as follows:

Divorce 

Spain has jurisdiction if one of the cases below applies: 

  • Both spouses are Spanish nationals
  • Both spouses are resident in Spain. 
  • One spouse used to be resident in Spain and the other still is. 
  • In a joint application, either spouse is resident in Spain.
  • The respondent is resident in Spain. 
  • The applicant is resident in Spain and has lived there for at least one year before making the application. This period is reduced to six months if the applicant is a Spanish national.

Alimony/maintenance 

Spain has jurisdiction if one of the cases below applies: 

  • The defendant is resident in Spain.
  • The creditor is resident in Spain. 

Matrimonial property 

Under EU legislation, Spain has jurisdiction if one of the cases below applies:

  • It is the habitual residence of both spouses.
  • It was the last habitual residence of both spouses.
  • It’s the defendant’s habitual residence.

Children 

Spanish courts have jurisdiction to deal with matters concerning children in a marriage if the child(ren) is resident in Spain when court proceedings started or if the defendant is Spanish or resident in Spain.

Domicile and residence considerations

Spanish law regards an individual to have habitual residence in Spain when they moved to Spain and become Spanish resident for the purpose of indefinite stay. The proof of habitual residence for domicile and residence matters include registration with the local town council (empadronamiento), ownership of a property or the possession of a long-term rental contract, an employment contract or proof of a self-employed business concern.

When determining if you habitually live in Spain, Spanish judges may also take the following factors into consideration: 

  • The place where the family usually lives and works. 
  • The location where the spouse(s) has registered the car. 
  • The location where the spouse(s) is registered with a doctor. 
  • The location of the bank accounts, tax and social security offices. 

Need help with family law?

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Marriage 

This section of our guide offers information on how Spanish law regards the institution of marriage.

Types of marriages recognised in Spain

Spain recognizes any civil or religious marriage as legally binding if it complies with the law in the country where the marriage took place or with the law in the country applied to one of the spouses. 

Which form applies to marriages between foreigners or that take place outside Spain? 

Spanish jurisdiction applies the following rules: 

  • Marriage in Spain between a Spanish national and a foreigner – Spanish law applies. 
  • Marriage in Spain between two foreigners – this marriage can only take place in Spain if one of the two is resident in Spain at the time of the ceremony. Spanish law applies. 
  • Marriage outside Spain between a Spanish national and a foreigner or two Spanish nationals – Spanish law applies or that in the country where the marriage took place. 
  • Marriage outside Spain between two foreigners – the law in the country where the marriage took place applies or that in the country of one of the spouses. 

Same-sex marriages

Same-sex marriage is permitted in Spain and the spouses have exactly the same rights and obligations as heterosexual spouses. Spanish law applies to same-sex marriages that take place in Spain.  

Types of marital property systems

Spanish law allows for two types of marital systems: 

  • Community of assets 
  • Separate assets

Community of assets 

Under this system, known as regimen de gananciales in Spanish, all assets, gains and profits acquired during the marriage belong to both spouses, regardless of who earned or bought them in the first place. 

This is the default system in all regions of Spain except for Aragon, the Balearics, Catalonia, Navarra and the Basque Country. In the Balearics and Catalonia, separate assets (see below) is the default system while in Aragon, Navarra and the Basque Country, different legislation applies. 

Separate assets 

In this system, known as separación de bienes in Spanish, assets, gains and profits owned by each spouse on marriage and acquired during the marriage belongs uniquely to the spouse who obtained them. This is the default system in the Balearics and Catalonia. 

Can you decide which marriage system to apply? 

Yes, despite the default rules, spouses may decide which system they wish to apply. The chosen type is recorded in the civil registry along with the details of the marriage. 

Can you change your system once you’re married? 

Yes, you can switch to the other system at any point in the marriage. It involves signing an agreement before a notary and the new system is then recorded in the civil registry. 

If you are changing from joint to separate assets, the usual procedure is to make an inventory of the commonally-held assets. They are then divided into two equal parts, each to which belongs to one spouse exclusively. 

Looking for advice on marriage in Spain?

Whether you’d like advice on a pre-nuptial agreement, need to change your marriage regime for financial reasons or need help with marriage paperwork, our expert team is more than happy to help. Contact us now.

Divorce 

In this section of the guide, we cover all aspects of family law regarding divorce in Spain.

General questions about divorce in Spain

When can you apply for divorce? 

Spanish law stipulates that you must usually have been married for at least three months before you can apply for divorce. 

What are grounds for divorce?

If you wish to get divorced in Spain, you do not have to provide any reason to do so. 

How do you start divorce proceedings? 

All divorce claims must go through proceedings with a lawyer and a court representative (procurador). If the divorce is taking place through mutual agreement, the spouses may use the same lawyer and court representative. Otherwise, each spouse must contract their own. 

The spouses submit their petition to the court via their court representatives. The court will then allow each spouse to explain their position to the judge who will make a decision. 

How long does it take to get a divorce in Spain?

The timescale depends on two factors: 

  • The nature of the divorce – those by mutual agreement tend to be resolved more quickly. 
  • The workload at the court. 

Your lawyer will give you an approximate idea of how long you can expect to wait when you make your application at the court. 

Does mediation exist in Spain? 

Spanish courts are keen for both parties to reach mutual agreement in a divorce and the law allows for mediation. Issues resolved through mediation must be filed at the court to allow the judge to approve them. 

Does Spain recognise a divorce sentence passed in another country? 

Divorce sentence in an EU country 

Yes, Spain must recognise it and there is no procedure to follow to obtain recognition. 

Divorce sentence in a non-EU country

Spain will only recognise the sentence if an exequatur is obtained. Read more information about obtaining an exequatur in Spain. In some cases, such as when divorce is sought in order to be able to remarry, an exequatur is not necessary.

If you got divorced in a non-EU country and intend to live in Spain, we recommend you seek recognition of the divorce sentence in Spain to avoid problems relating to alimony payments or custody of your children. We also advise that you initiate proceedings as soon as possible after your arrival so that you have all the necessary paperwork in place should any problems arise in the future.

International divorce

If one or both spouses are not Spanish nationals, International divorce is an another aspect to contemplate in the proceedings, particularly the criteria for choosing which jurisdiction applies to your divorce.

Do you have to apply for a divorce in the same country as the one where you got married?

No, not at all. In fact, it’s residency status that affects which state has jurisdiction rather than your nationality or where you got married.

Which country’s law will regulate my divorce?

According to the EU Regulation 1259/2010, the following criteria can apply to couples seeking divorce in any EU member state:

  • If both spouses are in agreement, it’s the country to which they have most connection. For example, if both live in Spain, that country would be Spain.
  • If there’s no agreement, the jurisdiction is in the country where one spouse usually resides or the habitual residence of the defendant.

What happens if one spouse is from a non-EU state?

The same criteria are valid because the regulation applies equally to EU and non-EU citizens who have their habitual residence in an EU member state.

Is it a good idea to register the divorce certificate in the country where you got married or are from?

Yes, we would recommend that you register the certificate with the appropriate authorities in your home country and/or in the country you married in.

Allocation of financial assets in divorce

The procedure for the division of assets depends on the nature of the asset. Divorce proceedings include maintenance (alimony) and compensation, but property matters are dealt with separately (see below). 

How do Spanish courts allocate financial resources? 

If there is no mutual agreement between spouses, the judge may order the following: 

Pensión compensatoria – this compensation is awarded when one of the spouses will be financially worse off as a result of the divorce. For more information, see Compensatory Alimony. 

Compensación por el trabajo doméstico – this compensation is awarded based on the household chores carried out by one of the spouses. For more information, see Household Work Compensation below.

For information about child maintenance/alimony, see Children and Divorce. 

What about the family home?

In the absence of mutual agreement, the judge may also allocate the use of the family home to one of the spouses. 

Compensatory Alimony 

The judge first assesses both spouses’ wealth and means to determine how much each owns and/or has access to. This assessment determines whether an imbalance exists and if it does, whether the spouse with more wealth and means can afford to pay compensation. 

Once the judge has the assessment, they will bear in mind the following factors: 

  • Agreements between spouses.
  • The length of the marriage. 
  • The age and health of the spouse due to receive compensation as well as their qualifications and chance of getting paid employment. 
  • Duties to the family in the past, present and future. 
  • Contribution of the spouse due to receive compensation to the other spouse’s work or business activities. 
  • The spouse’s wealth and means as well as their financial needs. 

How is compensatory alimony paid?

The form of payment depends on each case, although the judge usually rules that it’s made in on a regular basis, e.g. monthly. However, payment of a lump sum is also possible. 

How long does compensatory alimony have to be paid? 

The judge usually fixes a specific term for obligatory payments. Once that term has expired, there is no longer any legal obligation to pay. 

Can decision on compensatory alimony be removed?

An ex-spouse no longer has to pay compensatory alimony in the following cases: 

  • The justification for the compensation no longer exists.
  • The receiver remarries or cohabits with someone else. 

Household work compensation 

This type of payment seeks to compensate the spouse who will be financially worse off after the divorce and who looked after the home and/or family during the marriage with no financial reward. 

If the spouses do not agree on an amount, the judge is free to decide how much compensation is awarded and the payment terms. If household work compensation is awarded, it is included in the judge’s deliberations on compensatory alimony. 

Allocation of property assets in divorce

As we mentioned above, property assets are separate entities in divorce proceedings. This is because Spanish law governs how the spouses’ property and assets are owned on marriage. 

Joint assets 

If the spouses agreed to have a community of assets system when they married (regimen de gananciales), the assets acquired by them during their marriage are divided equally between them when they get divorced. 

Assets that are exceptions to this rule include: 

  • Property belonging to one party before the marriage.
  • Property acquired during the marriage but no purchased (e.g. through inheritance or donation). 
  • Personal effects including clothes with no substantial value.
  • Items required by the spouse to carry out their particular line of work or business.

Enforcement of maintenance/alimony payments

Spanish law has provisions for enforcing payments agreed under the terms of the divorce. They include the following proceedings: 

  • Seizure of income such as salary or pension.
  • Seizure of bank accounts.
  • Seizure of assets and their subsequent sale.
  • Withholding of tax rebates and/or social security benefits. 

Non-compliance with maintenance payments can ultimately lead to a prison sentence. 

How does this enforcement work outside Spain?

If the beneficiaries of the maintenance order live in an EU state, payments are enforced according to EU Maintenance Regulation.

If they live in a non-EU state, there are two possibilities for enforcement:

  • Bilateral agreements between Spain and the third country.
  • Hague Convention 2007: The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (HCCH 2007 Child Support Convention) and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (HCCH 2007 Maintenance Obligations Protocol). These seek to establish a modern, efficient and accessible international system for the cross-border recovery of child support and other forms of family maintenance.

Looking for objective legal advice about divorce in Spain

Get in touch with our expert team. We offer impartial advice and support to protect your best interests at what it is often a stressful and challenging time.

Children

In this section of our guide to family law in Spain, we examine legislation regarding the welfare of children after a legal separation or divorce. It covers the following aspects:

Custody

How does Spanish law regard parental responsibility once a marriage has broken up?

Under Spanish law, parental responsibility exists whether the mother and father were married or not and this responsibility continues once the marriage is over. Both parents continue to have obligations towards their children. As a result, they may both make decisions affecting the children regardless of which parent has legal custody.

How does Spanish law make decisions on custody and visits?

When there’s no mutual agreement between the parents, the judge bases the decision on the following factors: 

  • The child’s wishes (the first and foremost concern).
  • The number of children.
  • The parents’ role in the daily care of the child.
  • The parents’ personal aptitudes. 
  • The parents’ compliance with their obligations as parents.

What about custody? 

It is up to the judge to rule whether custody is shared or held by one parent only. If it’s the latter, the judge must also decide on the contact arrangements (see Access to children below). 

What is shared custody?

This type of custody is usually agreed between the parents who may either request it in their settlement proposal presented initially to the court or agree on it during divorce proceeding. It is also possible for the judge to order shared custody if it’s in the children’s best interests even if the parents do not agree.

Is it common in Spain?

Shared custody (known as custodia compartida) is increasingly common in Spain as more parents request it and judges grant it. Even if custody isn’t shared, judges now tend to grant more access time to the parent without custody. 

Access to children for the parent without custody

What rights does the parent without custody have regarding their children? 

The parent without custody may visit the children, communicate with them (e.g. by phone or video calls) and have them in their company. 

How are visitation rights decided?

Usually, both parties agree on the logistics for seeing the children, including where, when and how. However, if there is no mutual agreement, the judge rules on the time, place and manner in which visits can take place. 

When do custody and access orders expire?

As soon as the child is 18. 

Child maintenance

As well as compensatory alimony and/or household work compensation (see Divorce for more information), Spanish law includes provision for child maintenance when parents divorce. 

How do Spanish courts work out how much child maintenance is due? 

The amount must seek a balance between the personal income of the provider and the needs of the child. As a result, child maintenance payments may be increased or decreased depending on the provider’s financial assets and the child’s requirements. 

What does child maintenance cover? 

It pays for everyday expenses such as food, clothes, education and housing. One-off expenses such as a school trip are usually paid equally by both parents unless they have agreed otherwise. 

How long must child maintenance be paid? 

The provider must continue to pay until the child is financially independent or able to work and earn a salary. In practice, this means that it remains in place until the child finishes further or higher education. 

Leaving Spain with the child

One of the parents may wish to take their child outside Spain permanently and relocate to another country. In this case, the parent must obtain consent from the other parent independently of whom has custody.

What happens if the other parent refuses to give their permission? 

In this case, the parent wishing to take the child out of Spain must apply for court authorisation. Courts make their decision based on the following factors: 

  • The interests of the child (always the prime concern).
  • Relocation destination.
  • Reasons to leave Spain. 
  • The family’s country of origin. 
  • The child’s relationship with both parents.
  • The parents’ relationship and their consideration towards the child’s interests. 
  • Possibility of access once the child is out of Spain. 

The judge will consider all the above and listen to arguments from both parents and the child (if he/she is old enough). The judge then gives one of the parents the authority to decide whether the child can leave Spain or not. 

Are there any factors that work in favour of taking the child out of Spain? 

Judges are required by Spanish law to put the child’s interests first and as a result, authorisations may not be given if the relocation affects the child’s everyday life. This is particularly true if the chosen country is far away from Spain and would affect the other parent’s ability to visit their child. However, if the parent has better employment opportunities outside Spain or will have support from close family, the judge may rule in favour. 

Need help with getting child custody, maintenance or other family issues?

Contact our expert team now for a no-obligation chat to find out how we can help you protect you and your child’s interests.

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