Regional Divorce Law in Spain:Cataluña

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If you are thinking about getting divorced in Spain

please make sure to view:

10 Must Know Facts For Anyone Planning To Divorc

e in Spain

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Which law Applies?

If a couple who are both English and were married in

England but live in Cataluña, which law is applied to their

divorce proceedings?

How about a couple who possess different nationalities, both

having been resident in Cataluña?

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Which law Applies?

The Spanish Civil Code (Art. 107) provides that the laws

applicable to divorce proceedings in Spain shall be:

1) The law of the country of which the spouses share a

common nationality

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Which law Applies?

2) If there is not a common nationality, the law of the land in

which they are both normally resident

3) If the spouses are not normally resident in the same

country then the last country in which they were resident

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Which law Applies?

So, should a couple married in England apply for divorce

proceedings in Spain then the Spanish court shall apply the

law applicable in England.

However, the same couple could request that Spanish law be

applied if they are both normally resident in Spain.

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Which law Applies?

Spanish law is also applied in the case of a mixed nationality

marriage where both spouses are ordinarily resident in

Spain.

Given the number of people in this situation it is therefore

important to consider the application of Spanish divorce laws.

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Spanish Divorce Laws

In order to determine the Spanish legal rules that govern

matters such as the distribution of marital assets upon a

divorce it is first necessary to ascertain the 'system' of

economic relations marriage that the couple have agreed to.

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The two most important 'systems' of marriage are:

1) Sociedad de Gananciales

2) Separación de Bienes

Briefly, these can be defined as follows:

Spanish Divorce Laws

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Sociedad de Gananciales

Upon marriage a 'union of assets' is formed whereby all

future assets acquired during the course of the marriage

pertains to this 'union' and which upon dissolution of the

marriage should be shared between the spouses.

Spanish Divorce Laws

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Separación de Bienes

Both of the spouses retain all rights to assets acquired during

the marriage. Any assets that are bought with common funds

are owned in the proportion in which the spouses contributed

to the purchase of the asset.

Spanish Divorce Laws

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Separación de Bienes

Upon dissolution of the marriage it is necessary to determine ownership of assets.

Spanish Divorce Laws

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By Spanish Civil Code (Article 1315) the 'system' of marriage

that applies is determined:

1) By the couple themselves in a formal declaration before a

notary (capitulaciones matrimoniales)

Spanish Divorce Laws

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2) By the local prevailing law enacted by the regional

parliament

3) In the absence of local legislation, by the Spanish Civil

Code

Spanish Divorce Laws

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So, if a married couple did not make a formal declaration

stating a preference for one particular system (typically the

case), we then must analyse any regional laws that may

establish the 'system' of marriage to prevail in that region.

Spanish Divorce Laws

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Marriage Classification in Cataluña

Law 9/1998 states that the classification of a marriage is that

which is agreed between the parties (en capitulos) or in the

absence of such an agreement , ‘separación de bienes’.

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Division of Marital Assets upon a Divorce in Cataluña

The procedure for the division of assets upon the ending of a

marriage that is classified as a ‘separación de bienes ' is

governed by the Spanish Civil Code. For more information go

to: Division of Assets

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Child Custody in Cataluña

Typically, following a divorce any children will be placed in

the custody of one of the parents – almost always their

mother.

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However, another possibility is the shared custody of children

which may be defined as:

‘ the legal situation in which, following a separation or

divorce, both parents have legal custody of the children

equally, in terms of the conditions and rights that are

conferred in this regard.’

Child Custody in Cataluña

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While contemplated in the legislation reforming much of

family law in Spain (Law 15/2005) the concept of joint

custody has yet to really take off in Spain.

However, this may be changing with new laws being

introduced in a number of autonomous communities in Spain

Child Custody in Cataluña

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Cataluña is one of the regions that has introduced changes

to the civil law (Law 25/2010) such that joint custody is

considered preferential, though not by mandatory, when

considering custody issues.

Child Custody in Cataluña

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Divorcing parents must present a ‘parenting plan’ that will

include each parents’ proposal for the custody of the children

as well as their participation in the upbringing and education

of the child.

Child Custody in Cataluña

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However, the language is equivocal and speaks of joint

responsibility that “as far as possible must be exercised

jointly”.

While the judge may award joint custody if there is no

agreement to this end or little evidence that it currently exists,

an award of single parent custody can still be awarded.

Child Custody in Cataluña

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In the absence of regional laws determining such matters,

the Civil Code governs when considering issues related to

divorce and separation such as inheritances and common

liability for personal bankruptcy of one of the spouses.

Other Important Aspects of Divorce Law

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Other State laws also have a national reach and accordingly

may need to be taken into account in Cataluña depending on

the particular situation.

For example, visitation rights of grandparents and also

relevant to many is the family law applicable when a couple

are not married.

Other Important Aspects of Divorce Law

For details of the services available from local

English-speaking family law experts in Cataluña,

go to:

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Family Lawyers in Cataluña