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Everything you need to know about getting divorced in Spain

Everything you need to know about getting divorced in Spain
Everything you need to know about getting divorced in Spain. Photo: Free-Photos / Pixabay
How does getting divorced in Spain compare to other countries? How are the assets divided up? Do you have to prove grounds for divorce and how long does the process take?

2021 marks 40 years since divorce became legal in Spain.

Here we look at the divorce process, the legal implications and whether it’s easier for foreigners in Spain to file for divorce back in their home countries. 

Who can get divorced in Spain?

You can get divorced in Spain whether you got married here or not. The only requirements are:

  • One party is a Spanish national or a Spanish resident
  • You must have been married for at least three months
  • You or your ex-partner must have lived in Spain for more than six months before filing for divorce

Do I have to get divorced in Spain if I live here or do I have a choice?

If you live in Spain, it doesn’t necessarily mean that you have to file for divorce here, you may be able to get divorced in your home country or the country that you got married in, depending on your circumstances.

For example, you have the right to divorce in England or Wales, even if you live in Spain if:

  • You have been married for more than one year
  • You have appropriate grounds for divorce
  • You or your ex-spouse or both of you have a legal connection with England or Wales

In the United States, laws vary between states, but usually one of the partners should be resident in the US in order for the divorce to be granted there.

Find out about the divorce laws in your home country to determine where it will be more beneficial for you to file for divorce, if you have a choice.

Do you have to prove grounds for divorce in Spain?

In Spain, divorce is no-fault, meaning that you don’t have to prove your partner has done something wrong in order to have grounds to divorce.

This is unlike the laws in the UK or the US, where you would usually have to cite a reason for divorce. In England and Wales, for example, this could typically be adultery, unreasonable behaviour, two years’ separation with consent, five years’ separation or desertion. In the US, this also includes things such as impotence at the time of marriage, force or fraud obtaining the marriage, and bigamy.

How long does it take to get divorced in Spain compared to other countries?

Divorces can be long and drawn out processes or they can be relatively quick, depending on your individual circumstances.

According to Klev&Vera International Law Firm, the minimum length of mutual consent divorce proceedings in Spain is four months, while Balcells Group legal firm says that it takes between four and six months.

However, if there are children involved or the divorce is contested, the proceedings could take considerably longer – up a year or more.

In comparison, in the UK, divorces typically take six to nine months to complete.  

Note that in Spain, if your divorce is agreed upon by both parties and there are no children involved, proceedings can be quicker, as they can be done through a notary instead.

What you need to know about getting divorced in Spain. Photo: LEANDRO AGUILAR / Pixabay

How are assets divided during a divorce in Spain?

There are two different categories you could fall under when it comes to the division of assets during a divorce in Spain. These are gananciales or separación de bienes. Under the first one, everything that you owned coming into the marriage is shared and each half of the couple owns 50 percent. Under the second one, what you brought into the marriage and what you earned remains yours. So for example, if one half of the couple paid for 75 percent of the house and the other only paid 25 percent, then you will likely get that same percentage back after the divorce, unless agreed otherwise.

If you got married in Spain, you will have been married under the law of comunidad de bienes or separación de bienes, depending on which region you got married in. Most regions fall under the gananciales matrimonial regime, where everything is shared, but if you got married in Catalonia, the Balearic Islands, the Basque Country, Aragón or Navarra, you will fall under the separación de bienes regime.

According to Advocate Abroad “Spanish law is applied where a foreign national is resident in Spain and married to a Spanish national. Also, a married couple who are foreign nationals and who are habitually resident in Spain, may also request that a Spanish court applies Spanish law to their divorce application”.

In England and Wales for example, the equivalent of comunidad de bienes doesn’t exist and the starting point for dividing assets is 50/50. In the United States, the law depends on which state you file for divorce in, but generally, when you get married, your assets become joint property.

Each case in Spain is different though and in the end, the courts can decide how to divide up assets and income. They will generally try to find a solution that is fair to both parties.

The other main difference between Spain and the law in England and Wales is that in England there are strict rules to stop a spouse lying about what financial assets they have and committing perjury, whereas, in Spain, there’s no perjury for spouses in a divorce process, according to Domenech Abogados. This means that in Spain, it might be easier for one spouse to hide some of their finances from the other one. 

What about custody agreements?

More often than not, divorces that involve children are the most contested ones and the ones that are the most difficult.

In Spain, there are two different types of custody agreements – sole custody and joint custody. According to Crespo Family Lawyers, “In Spain, joint custody must be applied as the preferred option (except when it does not benefit the minor). The precedent case law, since 2011, establishes that equal contact with both parents is, in principle, healthier for the children, allowing both parents to fulfill their roles as parents and as educators”.

In reality in Spain, the children end up living with the mother most of the time, even though the father has the same legal right.

The parent that is not living with the children has the obligation to pay alimony to the other parent to help with financial costs in bringing them up.

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