Family Law in Spain

Divorce. The minor children of the spouses
24.Jul.14 - 9.00pm

The divorce decision does not affect relations between the parents and the children of the marriage, except as regards custody, on which the court that grants the divorce has to rule, either awarding custody to one of the spouses while arranging visiting rights for the others, or else arranging for shared custody by bouth spouses.

Accordingly with the article 92.4 Spanish Civil Code:

" The parents may agree in the regulating agreement, or the Judge may decide, in the best interest of the children, that the parental authority be exercised either totally or partially by one of the spouses."

For a shared custody to be granted in principle there needs to be an agreement between the parents (reached either in the initial proposal of regulating agreement, or during the procedure), although exceptionally the Judge (at the request of one of the parents and always with an opinion of the prosecutor) can decide to grant a shared custody founding the decition in the fact that only though of this regime of custody the superior interest of the minor is well protected.

This are the therms of the article 92.9 Spanish Civil Code:

"Prior to adopting any of the decisions refered to in the preceding paragraphs, the Judge may, on this own initiative or at request of a party, ask for the opinion of duly qualified specialist on the adequancy of the manner in which the parental authority is to be exercised or on the regime of the custody for the minors."

The underlying principle is that divorce not absolve the parents form their responsibilities towards their chilldren, so that both will be required to contribute to their maintenance.

As refer the article 93 Spanish Civil Code:

"In any event, the Judge shall determine the contribution that each progenitor ought to make to the support payments and shall adopt the proper steps to obtain the effectiveness of the undertaking and their adaption to the economic circumstances and needs of the children at all times."

Obtaining a divorce in Spain
24.Jun.13 - 09.00pm

After the reform operated by Law 15/2005, divorce in Spain does not requiire a previous judicial separation nor the concurrence of causes legally determined. This means that is possible to sue directly to get the divorce without an invocation of a cause. Divorce needs always a judicial decision accordingly with the article 89 Spanish Civil Code: " The dissolution of marriage by divorce can only take place by a judgment that so declares and shall take effect once the judgment becomes final. The divorce shall not prejudice third parties in good faith until it is recorded in the Civil Registry".

The divorce procedure can be initiated at the request of one of the spouses, at the request of one of them with the consent of the other or at the request of both spouses. For it to be granted, only the following requirements are needed:

  1. Three months need to have past form the celebration of the marriage if the divorce is interested at the request of both spouses or of one with the consent of the other.
  2. Three months need to have past form the celebration of the marriage if the divorce is interesed at the request of only one of the spouses.
  3. There´s no need of some time past from the celebration of the marriage to get a divorce when there is an evidence of risk for the life, physical integrity or sexual indemnity for the spouse that is the planitiff in the divorce case or for the children of both spouses or of one of them.

Due to the siystem described, it can be said that for divorce to be granted, it is enought with the requirements above mentioned so that in principle (and except in the last situation), the defendant can not oppose divorce based on material reasons. But besides suing directly for divorce, the Spanish legislatiion also foresees the possibility of asking for a legal separation in which common life is suspended but the marriage is not dissolved.

The regulation of separation and divorce is fully operative in relation to all kinds of marriages either integrated by people of the same or different sex since from Law 13/2005 the Spanish legislation recognizes men and women have the right to contract marriage and marriage is subject to the same requisites and efects independently wheter the spouses are form the same or different sex.

Marriage on the Civil Code of Spain
21.Feb.10 - 09:00am

The biggest reform of the Civil Code in the matrimonial area took place by Law 30/1981, of 7 July 1981, which, among other things, readmited divorce as ground for dissolution of mariage.
Law 30/1981 drafted a new Title IV, Marriage, articles 42 thought 107 of the Civil Code, due in part to the legislative changes required by the enactment of the Spanish Constitution of 27 December 1978 following the end of Franco´s period, and in part to the normal evolution of the Spanish society during the almost 50 years that had lapsed since the publication of the Civil Code.
Title IV of the Civil Code

Child Support
09.Jul.09 - 09:30am

When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the "non custodial" parent with whom the child does not live, to pay a certain portion of his or her income as child support. This is not the only scenario in which child support might arise. Less frecuently, when neither parent has custody, the court may orden them to pay child support to a third party who cares for their child. No matter what situation gives rice to the need for child support, it might help to think of the legal right to child support as being possessed by a child (which it technically is) for his or her proper care and upbringing, regardless of who actually receives child support payments.
Child Support Orders
Child support orders are issued by the family court, which bases the amount of support on the child support guidelines. These guidelines establish the amount of support that must be paid, based largely on the non-custodial parent´s income and the number of children. The court will also take into account other relevant factors, such as the custodial parent´s income and the needs of the children.
The court can deviate from the guidelines if there are significant reasons for doing so. The fact that the custodial parent has a high incomes does not itself justify derivation from the guidelines, because under the law children have the right to benefit from both parent´s income, or an increase in the child´s needs. Similary, the amount can be reduced if the circumstances justify the reduction.
Unmarried Parents and Child Support
In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father´s "paternity" of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using generic (DNA) testing. The court will order the "putative" (or alleged) father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will iusse a child support order in a manner similar to that in a divorce situation.


Divorce in Spain

Protect your Interests

Keep your finances separate. Open individual accounts and close or freeze all joint accounts.

Make sure your personal property is in your possession. Anything you leave with your spouse during the separation period will likely stay with that spouse in a later divorce action unless there is change in circumstances.

Remove your name form any leases, titles, mortgages, loans, utility accounts and credit card accounts that your spouse will be responsible for.

After property and debts are divided in the separation agreement, any income from investments you make from your assets will belong to you and will not be considered marital property if you should later file for a divorce.Of course, this will also apply to your spouse.

When you negotiate a separation agreement, keep in mind that the agreement will probably not change that much when you or your spouse late convert the legal separation into a divorce.

Make sure you protect your interest!