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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 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:
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 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.
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Divorce in Spain 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! |