Warning: The information set out below is a general guideline provided by DOMENECH ABOGADOS.
Specific advice should be sought before any action in reliance on it is taken, as explained more
fully in this website's
legal notice.
1.
I am not Spanish, but I have been resident in Spain for years. Can I get
divorced in Spain?
Yes. Even if your spouse has now left Spain, you may also be able to divorce
here, so long as certain conditions are met. The Spanish courts may then have to apply
Spanish law or a foreign law, depending on the particular circumstances of your
case.
2.
Am I likely to be better off divorcing my husband in Spain or
abroad?
In some cases, the position can be the same. Where two English people divorce in
Spain, for example, the Spanish courts must apply English law: so, if you’d be entitled to be paid
X in the UK, you should in theory be entitled to be paid X here too.
3.
Why “in theory”?
Because a Spanish judge, when applying a foreign law, is still likely to
approach the issues with a Spanish legal frame of mind and may not construe the case exactly as a
foreign judge – applying her/his own law - would do.
4.
How can you demonstrate to a Spanish court what a foreign law says?
By providing the Spanish judge with certificates from appropriate legal experts
which set out what the foreign law says in relation to every relevant aspect of the divorce.
5.
I’m Scottish, my wife’s from Madrid, and we have lived in the Canaries since we
married a few years ago. What law should be applied and where – and must I allege her
adultery as the cause of divorce?
You can divorce in the Canaries; Spanish law is applicable to your case; and, no, there’s no
requirement under Spanish law to allege any “fault” on either side.
6.
How long must we be legally separated before we can divorce in
Spain?
If Spanish law can be applied to your case, you can apply directly for divorce
one you’ve been married for three months - no previous legal separation is required. But in
those cases where domestic violence can be proved, no such three month period has to pass and the
victim can apply for divorce straight away.
7.
My husband says he has a Spanish lawyer friend who can act for both of us in the
divorce – is that OK?
This is right only if both parties completely agree on all the terms of a
divorce and there is absolutely no disagreement between them.
8.
My wife left Spain after we were divorced a couple of months ago, returning to
France with our twins. I have had one visit to the children in France, but now she’s being
difficult about my seeing them and is basically putting up all sorts of excuses to stop me from
doing so. Can you do anything to help?
Probably, but we need to move fast. The Spanish courts will retain the right to
re-open the contact aspects of your divorce for a period of three months from when the children
were lawfully taken out of Spain to live in France. In relation to non-UE countries, this might not apply and each case should be considered on its own merits.
9.
I’m divorcing in Ireland. The only link we have with Spain is a Spanish holiday
home. How can this best be dealt with in our divorce?
First of all, the Irish courts must understand that there’s no simple “mirror
order” procedure in Spain. The Irish divorce order can be made to apply to your Spanish home, but
the order will need very careful wording. The best thing is for Doménech Abogados to work with your
Irish counsel to ensure that the phrasing of the Irish court order is correct before it is
made. Oh, and there’s another thing ...
10.
What’s that?
You should now consider how this Spanish asset should be provided for in your testamentary dispositions.