Divorce is a complicated process, no matter where you live. But when you add the complications of living in a foreign country, things can get even more complex. If you’re considering divorce in Spain, it’s essential to understand the Spanish legal system and what to expect during the process. This guide will walk you through everything you need to know about divorce in Spain, from grounds for divorce to the different types of divorces available.
What is a divorce in Spain?
Divorce in Spain is similar to divorce in other European countries. Divorce is when a married couple legally ends their marriage. Once you finalise the divorce, there is a legal separation between the couple. When you have a legal separation, there is
- End to inherit the assets of the spouse
- No joint financial liabilities against third parties
- The right to remarry
When can I divorce?
Spain is a no-fault divorce jurisdiction, so you don’t need to provide a reason for getting divorced.
If you want a divorce in Spain, you must wait at least three months after you get married before filing for divorce. This waiting period can be waived in certain circumstances by a court, such as if you have been physically abused or if your spouse has been unfaithful.
What are the different types of divorce in Spain?
There are two types of divorce in Spain: contested and uncontested.
A contested divorce is when the parties cannot agree on one or more issues, such as child custody, property division, alimony, or any other issue. If you’re unable to reach an agreement, the court will make a decision on these issues for you.
A contested divorce is also known as a contentious divorce. This type of divorce is more expensive and time-consuming than an uncontested divorce, so it’s important to reach an agreement with your spouse before going to court.
If there are contested issues with the divorce, the divorce can take up to two years to finalise.
An uncontested divorce is when the parties agree on all issues, such as child custody, property division, alimony, etc. This type of divorce is cheaper and quicker than a contested divorce. If you and your partner can reach an agreement, you can file for this type of divorce proceeding.
In Spain, a divorce can be completed in four months if there is mutual consent and mutual agreement on how to separate on paper.
Steps to getting a divorce in Spain
If you decide to get a divorce in Spain, there are several steps you need to take.
1. Choose a right lawyer
It’s important to choose the right lawyer or law firm for your divorce. Make sure you find a lawyer who is experienced in Spanish divorce law and who can help you navigate through the process.
2. Gather documents
This can include documents such as bank statements, property deeds, tax returns, NIE, a list of common assets, and any other documents and files that support your case.
3. File for divorce
You will need to file a divorce petition with the Spanish courts. The divorce petition is a divorce deed according to the Spanish civil code. A lawyer will make sure that the applicable law is chosen to file the divorce.
4. Serve divorce papers
The next step is to serve the divorce papers to your spouse. This can be done by your lawyer or by the court.
If the parties cannot agree on any issues, they will need to go to mediation. This is a process where a neutral third party helps the parties reach an agreement. For example, you and your spouse’s lawyer speak to reach an agreement.
6. Court hearing
If mediation is unsuccessful, the case will go to a Spanish court for a hearing. The court will make a decision on all contested issues.
7. Finalise divorce
Once the court makes a decision, the divorce will be finalised. This can be done by your lawyer or you can do it yourself.
8. Get a divorce certificate
Once the divorce agreement is finalised, you will receive a divorce certificate from the court. This document confirms that your marriage has been legally terminated.
9. Pay lawyer fees
You will need to pay your lawyer’s fees and court costs. These can be expensive, so it’s important to have a budget in place.
Where can you get a divorce?
In Spain, you can only get a divorce from the courts, and you cannot get a divorce online or from an agency.
Country of divorce
If you are a foreign national, married to a foreign national, or reside in a foreign country, you might wonder if you can divorce in Spain.
- If you and your spouse are both residents of Spain, you can divorce in Spain
- If you are a national of another country but resident in Spain, you can divorce in that country.
In general, people divorce where they reside in.
The necessity of being in Spain
The spouses don’t need to be present in Spain to finalise the divorce; the divorce can be done by post/mail. However, if the couple wants to divorce needs a judge to authorise the divorce, the spouses or their attorney (through a power of attorney) needs to attend the hearing before the judge.
Joint property ownership
When there is joint ownership of a property, typically, it is sold. The money from the sale is then split between the couple. I one spouse wants to keep the property, they can buy out the other spouse’s share. The process for dividing joint property is called “partition”.
The property may be used where there are children, and a parent has been granted custody. The mortgage on the property will still have to be paid by the owner, but they may deduct child support payments.
Custody of children
The parents (married or unmarried) can agree on custody of children through a written agreement or convenio. A convenio is a written agreement signed by both parents and a Spanish notary public. This is a document that can be used in court to establish custody arrangements if the parents cannot agree on custody themselves.
A judge will review the agreement and change it if necessary. If the parents can’t agree on custody, the judge will decide based on what is in the best interests of the children.
The following are some factors that a judge may take into account when making a custody decision:
- The age of the children
- The relationship between the children and each parent
- The wishes of the children, if they are old enough to express them
- The health of the children
- The parent’s ability to care for the children
- The home environment of each parent
- Any history of abuse or neglect by either parent
- The distance between the parents’ homes
- The parents’ work schedules
In Spain, typically, the woman is awarded custody of the children; however, in some autonomous regions, the judge is obligated to consider the father as custodian if he has been the child’s primary caretaker.
Alimony may need to be paid when one partner is economically in worse shape than the other due to the divorce. Typically alimony is paid when one spouse cannot work or earn a living because they are taking care of the children full-time.
A judge determines the amount and duration of alimony payments on a case-by-case basis.
There is no set formula for determining alimony payments. S me factors that a judge may take into account include:
- The income of each spouse
- The standard of living the couple had during their marriage
- The age and health of each spouse
- The amount of property and assets each spouse has
- Any debts or payments that each spouse must make
- Whether one spouse can support themselves
If one spouse is ordered to pay alimony, they typically have to continue making those payments until the other spouse dies, remarries or finds that meets requirements.
The divorce itself does not need to be the reason for the economic disparity, but it is often a factor.
Speak with a divorce lawyer
If you are considering a divorce in Spain or need help with Spanish family law, it is important to understand the process and what to expect. Speaking with a divorce lawyer and getting professional legal aid is always a good idea, as they can help guide you through the process and ensure your rights are protected.
Contact our team at SpainDesk, we are a group of multilingual Spanish lawyers. Our services include family law, divorce, alimony, child custody, and more. We can help you with your specific legal needs.