In international divorce or separation, it is common for one parent to have custody of the children, but for no maintenance or child support to have been agreed upon in the ruling. In these cases, the question may arise as to whether it is possible to claim child maintenance in Spain, especially when the non-custodial parent moves to our country. On today’s article, we explore the legal options available to begin an international child maintenance claim in Spain.
What is child maintenance?. Can I claim maintenance in Spain?.
Child maintenance refers to the obligation to provide the necessary resources to meet a person’s basic needs, such as food, housing, clothing, and medical care. This obligation often arises in divorce or separation situations between parents and children. Depending on the country where the divorce is decreed, it is possible that child maintenance is not agreed upon in the divorce ruling. But this does not prevent a claim from being made later if circumstances change. If you have custody of the children and your ex-partner lives in Spain, in principle, you could claim child maintenance in our country.
Jurisdiction in international child maintenance claims.
According to Article 769.3 of the Spanish Civil Procedure Law (LEC), Spanish courts are competent to hear a child maintenance claim in favour of the minor children. For this, it is necessary that custody has been granted to one of the parties, and the defendant resides in Spain.
Article 3 of European Regulation 4/2009 of 18 December 2008 also establishes that the courts of the place where the defendant or creditor habitually resides will be competent.
Which law applies to determine child maintenance?.
Although your case may involve an international claim (either because you reside abroad or are of a nationality other than Spanish), Spanish law will apply to determine the amount and the method of payment for child maintenance. This is established in the aforementioned European regulation, which emphasizes that the law of the forum (in this case Spain) will govern the application.
Similarly, although the Hague Protocol generally establishes the residence of the child (Article 4.3) as the primary criterion, it also allows for the application of the law of the forum (in this case, Spanish law) when the courts of the defendant’s habitual residence are involved.
How can I prove custody in Spain if I divorced abroad?.
If your child’s custody was granted by a foreign ruling from an EU member state, this ruling will be recognised in Spain without any additional procedures. However, for the ruling to be valid and enforceable in Spain, it must be accompanied by the certificate outlined in Article 36 of Regulation (EC) 2019/1111, which must be issued by the originating court.
If the ruling was issued by a country outside the EU, each case must be studied individually to determine whether a bilateral agreement exists, whether an exequatur is required, etc.
Conclusions.
If you have custody of your children and the non-custodial parent moves to Spain, it is possible to initiate an international child maintenance claim through the Spanish courts. At White-Baos, we offer specialised legal advice to manage child maintenance claims. Do not hesitate to contact us for expert legal advice.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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