CAPITULACIONES MATRIMONIALES (MARRIAGE ARTICLES/SETTLEMENTS AND ECONOMIC MARRIAGE REGIMES IN SPAIN.
COMMUNITY PROPERTY- COMMUNITY OF ASSETS
SEPARATE PROPERTY
PARTITION SCHEME
DIVORCE AND SEPARATION
DIVORCE AND SEPARATION OF FOREIGNERS IN SPAIN
When a person decides to get married, he/she is accepting a contract where both spouses are legally linked to each other and in agreement with a number of rights and obligations.
CAPITULACIONES MATRIMONIALES (MARRIAGE ARTICLES/SETTLEMENT AND ECONOMIC MARRIAGE REGIME IN SPAIN .
In Spain the economic regime governing the marriage or its economic consequences can be set up or modified by means of the CAPITULACIONES MATRIMONIALES ( which is a kind of prenuptial or postnuptial agreements). In general the economic regime in Spain is the common property regime ( SOCIEDAD DE GANANCIALES) except for the regions of Catalonia, Valencia, Aragon, Basque Country and Navarra, as these regions have their own matrimonial regime.
Through the CAPITULACIONES MATRIMONIALES in Spain the spouses can choose the economic regime for their marriage between the 3 regimes foreseen in the Spanish Civil Code:
COMMUNITY OF ASSETS ( SOCIEDAD DE GANANCIALES): According wiht this regime the profits and losses of the spouses are shared between them, and in case of divorce or dissolution of the marriage the matrimonial assets, should be, normally, divided equally between them.
SEPARATE PROPERTY ( SEPARACION DE BIENES): Under this regime each spouse has and keeps their own private assets before and during the marriage.
PARTITION SCHEME (REGIMEN DE PARTICIPACION): Both spouses have the right to share the benefits obtained by the otherduring the marriage.
The previously mentioned CAPITULACIONES MATRIMONIALES are not mandatory, therefore if they are not granted then the regime established for that territory or region will apply.
DIVORCE AND SEPARATION IN SPAIN.
In case of separation or divorce, the spouses will need to comply with the obligations incurred as result of the marriage and divorce according to their applicable matrimonial regime and the CAPITULACIONES MATRIMONIALES by which the marriage was governed.
Issues like compensation between spouses, maintenances for children, use of the family home, etc., must be decided by the Court in these legal processes..
The divorce and the separation could befiled by consent or in a contentious way, depending if the spouses are or not in agreement.
DIVORCE AND SEPARATION OF FOREIGNERS IN SPAIN:
If you are not Spanish ( British, Dutch, etc) and you want to start a process of separation or divorce in Spain, even if you were not married in Spain ( UK, England, Ireland, etc) you will be able to apply for divorce in Spain if the Spanish Courts has jurisdiction.
In this case your national law could apply but you should bear in mind that demonstrating the applicable national law in a different country is far from straightforward and needs to be dealt with by someone specialized in these matters in both countries. Unless the position under your national law and the applicable law to the divorce and the marriage is understood it will be impossible to negotiate or be advised properly whether dealing with a Divorce by Consent or Contentious Divorce.
In order to be able to know if Spain has jurisdiction the last domicile of the family ,the actual domicile of the parents and the children, etc will need to be checked.
In Spain, you can get divorced either in Court (which is the most common way) or before a Notary Public. However, if there are minor children in the marriage, it is not possible to get divorced before a Notary, and you are required to resort to the Courts.
In Spain there are two ways of getting divorced. Divorce by mutual agreement and contentious divorce. The first one involves the spouses’ reaching agreements on the economic and personal conditions that will apply to their divorce. These agreements will be compiled in a document known as “Settlement agreement”. The contentious divorce occurs when the spouses do not reach an agreement and resort to a Judge to decide on this matters.
In Spain it is no longer necessary to prove grounds or cause to get divorced. Once 3 months have passed since the celebration of the marriage, either of the spouses can apply for divorce. You can get divorced even if your partner does not agree and wants to continue the relationship.
Yes. Generally speaking, if you have your habitual residence in Spain (or if the last family domicile is in Spanish territory) the Spanish Courts would have jurisdiction.
If your habitual residence is in Spain, the Spanish law may apply to the divorce. However, it is important to bear in mind that if you got married outside Spain (or after the marriage you lived in a foreign country) the applicable law to your matrimonial property regime, might be the law of that country. This is why it is necessary to study the specific circumstances of each case.
You will need to present your marriage certificate, the birth certificate of your children, deeds or documents concerning your real estate, proof of your habitual residence, etc. Please note that some of these documents may require a sworn translation and apostille/legalisation if they were issued abroad.
If you get divorced before the Courts, you will need to be assisted by a solicitor and a procurator. If the divorce is by mutual agreement, both spouses may share solicitor and/or procurator.
If the spouses cannot reach an agreement on the custody of the children, the judge will decide. There are different types of custody. On the one hand, there is the single-parent custody. When custody is awarded to only one of the parents. On the other hand, it also exists a shared custody, in which both parents alternately share custody of the children. This type of custody is increasingly common in Spain.
When there are minor children in the marriage, it is compulsory to get divorced in Court. The Public Prosecutor’s Office will intervene in the process and will ensure that the interests of the minors are respected. When the Judge passes sentence, besides deciding which spouse gets the custody, he or she will also decide on other issues. The visitation and communication regime of the non-custodial parent; the payment (or not) of child maintenance, etc.
Article 97 of the Spanish Civil Code foresees a compensatory pension between spouses to compensate for the economic imbalance that may result from the divorce. Its amount will be calculated according to the dedication of the spouses to the marriage, the economic means of each spouse, the duration of the marriage, etc.
Yes, among others, art. 1438 of the Spanish Civil Code also contemplates a compensation, when the matrimonial property regime of the spouses is separation of property.
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