Family Law 2023 Comparisons

Last Updated February 28, 2023

Law and Practice

Authors



TAMBORERO, Abogados de Familia was founded in 1974 by Ramón Tamborero and is located in Barcelona (Spain). It is a highly specialised law firm providing advice to couples in crisis. In 2003, a second generation joined the firm with the addition of Paola Tamborero, expanding the firm’s professional practice into the field of international family law. Currently, it has a well-consolidated and strong professional team consisting of six lawyers and two assistants. The firm offers advice in family law related to marital crises (separation and divorce proceedings, child custody, maintenance claims, and dissolution of common property bonds), as well as preventative guidance on the preparation of pre- and post-nuptial agreements. Resolving international couple’s conflicts is a standard field of practice for the firm, and has led to its involvement in a recent decision of the Court of Justice of the European Union (CJEU) on a preliminary ruling arising from a contentious matter where the firm intervened as a party.

From an international viewpoint, since Spain is a member state of the European Union, Spanish domestic law must give precedence to the law of the European Union. Therefore, when checking if a Spanish court has jurisdiction to hear certain divorce proceedings, recourse is primarily made to European Union regulations. The implementing regulation is Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction. The rules contained therein base jurisdiction primarily on the habitual residence of the spouses and on nationality. Only exceptionally will domestic regulations (eg, the Organic Law on the Judiciary) be used to determine judicial jurisdiction.

This Regulation applies to all marriages, regardless of their form of celebration, and so extends to marriages between people of the same or different sex.

Stable partnerships are not covered by the rules on divorce since they are not marital unions. The laws regulating them differ throughout the territories of Spain.

Two legal concepts are taken into account when applying Regulation (EU) 2019/1111 in Spain for the purposes of determining jurisdiction in divorce matters:

  • habitual residence; and
  • nationality.

These concepts must be interpreted in light of European law.

“Habitual residence” is not defined in EU Community regulations. However, the CJEU has interpreted that a residence is habitual when two concepts concur:

  • where the intention of the interested party is to establish their usual centre of interests in a given place; and
  • where the presence of the interested party has a sufficient degree of stability.

See CJEU Judgment of 25 November 2021 (C-289/20) and CJEU Judgment of 1 August 2022 (C-501/20).

“Nationality” refers to the legal link between the individual who has been granted that nationality and the population of the state which granted them nationality.

In divorce proceedings, the defendant may challenge jurisdiction. To this end, a motion to demur jurisdiction will be made with the aim of filing proceedings due to the lack of international jurisdiction of the court where the divorce application has been presented. This action must be filed with the court within ten days of notification of the claim.

If a foreign jurisdiction is processing divorce proceedings and an application for divorce is subsequently made in Spain between the same parties, it could be the case that both courts have jurisdiction to hear the divorce proceedings. However, only one of them can decide on the proceedings. As a rule, the principle of prior tempore, potior iure applies, so the first court before which the divorce petition was raised will resolve it.

A lis pendens notice will therefore have to be raised before the second court (Spain), the effect of which will be to stay proceedings until the matter is resolved in the foreign court. This defence is regulated by Article 22 nonies of the Organic Law on the Judiciary and by Article 39 of the Law on International Judicial Cooperation, and will be applied when proceedings have been initiated in Spain, in a European Union member state that is not a party to the corresponding European regulation, or in another state that is not a party to an international convention applicable to the matter.

Divorce was introduced in Spain after the entry into force of Law 30/1981 of 7 July amending the regulation of marriage in the Civil Code, and this legislation determines the procedure to be followed in cases of annulment, separation and divorce. Initially it was causally based, and thus, in order to grant it, one of the grounds set out in Article 86 of the Civil Code had to be invoked. However, said causes were fundamentally temporary: a minimum period following legal separation, or the effective cessation of cohabitation, being required for an application for divorce to be granted.

Law 15/2005 of 8 July eliminated causality for divorce. To be granted a divorce, the only requirement now is the passing of three months from the date of celebration of the marriage.

This regulation applies to all marriages, regardless of their form of celebration, and so extends to marriages between people of the same or different sex.

As stated, stable partnerships are not covered by the rules on divorce since they are not marital unions. The laws regulating them differ throughout the territories of Spain.

In Spain, divorce can be requested once three months have elapsed since the celebration of the marriage. The application can be made by mutual agreement between both spouses. In this case, if they do not have children or if any children are legal adults, they may choose between applying for a judicial divorce or signing a divorce before a notary. If there are underage children, application for divorce must be made to a court.

When there is no agreement between the parties, either spouse may make a contentious application for divorce. An application for divorce may be brought by only one of the spouses, without the other spouse being able to rely on any cause to oppose it.

In Spain, since 2005 an application for divorce may be made without the need to resort to a prior separation procedure.

As a preliminary issue, it must be highlighted that in Spain divorce proceedings are understood to have been initiated from the moment the plaintiff files the application in court. This is the date taken into account for the purposes of a possible lis pendens defence.

Therefore, service on the defendant does not initiate proceedings. This notification will be carried out by the court itself in person. If the defendant resides outside Spain, serving of notice may be made through different means (eg, certified international mail, assistance from the courts of the country where the defendant resides, etc). At a European level, Regulation (EU) 2020/1784 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters would apply.

Spain has signed agreements with the Catholic Church and the Protestant Church. Jewish and Muslim marriages are also recognised. Marriages contracted in accordance with the rules of these four areas have full civil effect in Spain. All married people are entitled to apply for divorce in Spain, if the Spanish court has jurisdiction to grant it, regardless of how the marriage was celebrated, as recognised in Article 85 of the Civil Code.

Although since the reform of 2005 the usual option for ending a marital union is via dissolution of the bond through divorce, the possibility of requesting only separation persists in Spain. In this case, the effects of the marriage are suspended, but the bond of the union is upheld, and can be reactivated, without the need to celebrate a new marriage.

A request for separation by mutual agreement can be raised judicially or before a notary, provided the couple have no children in common or the children are legal adults. Where there is no mutual agreement or there are underage children in common, the request must be submitted to the court.

It is not necessary to give a reason to apply for separation in Spain. The passage of three months from the date of celebration of the marriage is sufficient to allow separation.

In addition to separation and divorce, in Spain it is also possible to request the annulment of a marriage in the following cases:

  • where the marriage has taken place without marital consent;
  • where the marriage involves an unemancipated minor or a person who is already married; -where the marriage is between persons directly related by consanguinity or adoption, or indirectly related by consanguinity up to the third degree;
  • where one of the spouses has been convicted for having taken part in the intentional death of the spouse or person to whom they had been joined by a relationship of affectivity analogous to a conjugal relationship;
  • where the marriage has not been celebrated before a competent authority or has been celebrated without witnesses; and
  • where there is an error as to the identity of one of the contracting parties.

Family breakdowns entail the need to regulate the way in which contributions towards the maintenance of any children will be made, as well as, in cases where appropriate, the need to set a compensatory allowance in favour of the member of the couple whose financial situation has been damaged by the termination of the relationship.

To resolve these issues, Regulation (EU) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is applicable in Spain. The general provisions for attributing jurisdiction to a court are again based on the defendant’s habitual residence or on that of the person due to pay maintenance. However, another court may have jurisdiction if the maintenance action is ancillary to an action for parental responsibility or an application for separation or divorce.

It is possible to challenge the jurisdiction of the court on the same terms as those on which it may be challenged in divorce proceedings. Thus, a demurrer due to a lack of jurisdiction would be entered within ten days following the notification of the claim, the effect of which would be to file the proceedings.

Once a maintenance procedure has been raised in Spain, the Spanish court will rule on it and will only suspend the procedure where an exception for lis pendens is raised and it is proven that another (foreign) court had previously recognised the claim. If there are no prior proceedings in another country, the Spanish judge will not suspend the proceedings in Spain.

The Spanish court will not be able to reach a decision on financial claims that have already been decided by another foreign court. It may rule on such questions only when an application is made to amend the measures adopted by the foreign judge, taking into account a change in the circumstances when it was reached. For the Spanish judge to be able to make a decision on proceedings for financial measures, the Spanish court must have jurisdiction in accordance with the rules contained in Regulation (EU) 4/2009.

Serving notice will be carried out by the court itself in person. As mentioned in 1.2 Divorce Process, if the defendant resides outside Spain, serving of notice may carried out through different means (eg, certified international mail, assistance from the courts of the country where the defendant resides, etc). For serving notice at a European level, Regulation (EU) 2020/1784 on the service in member states of judicial and extrajudicial documents in civil or commercial matters will apply.

Proceedings for financial claims begin with presenting a claim before the court with jurisdiction in Spain. This claim is notified to the defendant, who will have 20 working days to reply to and oppose it. Subsequently, an oral hearing is held which the parties, represented by their lawyers, must attend. Evidence is put forward at this oral hearing, and interrogation of the parties and witnesses is carried out. After the hearing, a judgment will be issued in the following weeks which will cover the corresponding financial measures to be adopted.

Financial claims between spouses must be requested at the first judicial procedure regarding the breakup. Claims for child support can be presented at the time where the need for food arises, and it is usual practice to join this request to custody proceedings.

Where Spanish law is applicable, it recognises three marital financial regimes:

  • separation of property;
  • jointly held property; and
  • accrual.

Application of one regime or another will depend on the law applied, since different forms of civil law coexist in Spain.

The court is subject to the rules of apportionment specific to each financial regime, without any margin for discretion.

The two most common regimes in Spain are that of jointly owned property and that of separation of property, with the accrual regime being less common.

The supplementary regime in accordance with the Spanish Civil Code is that of jointly owned property, such that during the marriage the spouses share all the assets and debts in common and, at the end of the relationship, the rules for settlement which begin based on a distribution in halves between both spouses are applicable.

Conversely, the regime of separation of property implies that each spouse retains the exclusive patrimony that they had before contracting marriage and, likewise, what they may have acquired later under any title of ownership. This does not prevent the spouses from acquiring jointly owned and undivided property. These shared assets will be settled according to the ordinary rules of jointly owned property.

In Spain, trusts are not regulated, nor is there judicial practice in this regard.

Marital breakdown can place one of the parties in a financial situation where they cannot provide for their own basic needs, since during the marriage they were dependent on their husband/wife. In such cases, and in provisional measures proceedings, the judge may award maintenance in favour of one of the spouses.

During the separation or divorce proceedings, a compensatory allowance can be requested, to which the spouse to whom the marital breakup causes a financial imbalance in relation to the position of the other spouse (leading to a worsening of their situation as compared to during the marriage) will be entitled.

The amount and duration of the allowance will be determined by assessing:

  • the age and state of health of the spouse requesting it, their professional qualifications and possibilities of accessing employment, and their past or future dedication to the family;
  • the duration of the marriage; or
  • the financial possibilities of both spouses.

The allowance may be granted temporarily or for an indefinite period, depending on the circumstances of each individual case.

Pre- or post-nuptial agreements are not explicitly recognised in ordinary civil legislation, as they are in the civil law of some Spanish territories. However, this does not mean they cannot be recognised by the courts. Article 1323 of the Civil Code grants spouses the full freedom to enter into a contract with each other, as well as to adopt any stipulation based on their marriage (Article 1325 CC).

However, the content of such an agreement, when it affects underage children, is not binding on the court, which may adopt measures other than those made by the spouses in the pre- or post-nuptial agreement.

Conversely, if the agreement contains waivers of countervailing rights, these must be reciprocal, and the judge may not uphold them if the circumstances giving rise to said waivers are detrimental to one of the parties at the time of the breakup, where the circumstances concurrent at the time the agreement was signed are substantially different.

In Spain, there is no general regulation applicable to unmarried couples. The various autonomous communities in which the territory of Spain is divided have legislated on this area, with varying treatments.

Mostly, the breakup of the couple may entail the right of one of the partners to claim alimony, although they may also apply for other countervailing rights.

In Catalonia, for example, a cohabitant can demand alimony, but payment of this cannot exceed three years. Also in Catalonia, a cohabitant could claim a right to compensation if, during cohabitation, their partner increased their patrimony while the person requesting the right dedicated themselves to the family or assisted their partner’s business either without remuneration or with insufficient remuneration.

Any judicial decision is enforceable. Therefore, if a party does not comply with the obligations arising from a decision, it may be sued, and its compliance will be judicially required. In the case of financial obligations, the non-payment of alimony entails the seizure of the debtor’s bank accounts, wages or assets, as well as the imposition of costs and the obligation to pay a surcharge for late payment.

At the international level, Spain is bound by the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. As such, the enforcement of a foreign decision requiring maintenance may be considered in Spain.

Proceedings are always reserved, so the media cannot access the judicial file any more than the parties to it.

The parties can initiate a mediation process to attempt to resolve disputes of any kind between them (ie, not just financial disputes). Mediation can be initiated by either party at any time.

The courts compel the parties to attend an informative mediation session in any initiated family proceedings. However, they cannot require the parties to submit to this if they do not wish to. Only failure to attend the first briefing may result in sanctions.

Agreements reached through a mediation process are included within the judicial procedure if it is still ongoing, and the judge will validate them through a judicial decision.

When an agreement has been reached in the absence of any judicial procedure, it is advisable to prepare a formal legal instrument to be signed between the parties, including such agreement. In order to be enforceable, the agreement must be approved by the judge, following ratification by the parties.

The jurisdiction for hearing proceedings concerning children (ie, parental responsibility proceedings) is regulated by the 1996 Hague Convention, as well as by EU Regulation 2019/1111 (see 1.1 Jurisdiction).

The general rule for determining jurisdiction in proceedings involving children concerns that of the minor’s habitual residence.

The concept of “habitual residence” is therefore relevant when determining the court with jurisdiction to hear parental responsibility proceedings, especially when applying EU legislation (EU Regulation 2019/1111).

“Nationality” has a more limited impact. Determining jurisdiction based on nationality only covers those cases in which Spanish domestic legislation must be applied – ie, the Organic Law of the Judiciary, whose Article 22 quater (d) allows the plaintiff, if they are Spanish, to present a claim for parental responsibility in Spain, even if the minor does not reside in Spain.

In determining the allocation of time for child arrangements, judges take into account several parameters:

  • the emotional bond between the child and each of the parents;
  • the ability of the parents to ensure the child’s well-being;
  • the time that each of the parents had devoted to caring for the child before the breakup, and the tasks they performed;
  • the distance between the parents’ respective homes;
  • the child’s age; and
  • the opinion expressed by the child (the minor).

All this is assessed by the judge when deciding on the time that the child will spend with each of the parents. Frequently, this is assisted by the opinion of the technical teams of psychologists assigned to the courts.

In Spain, the tendency is to uphold shared parental responsibility for children, both in terms of the rights and duties comprising parental authority, and in relation to the time that each parent will spend with the child (custody or guardianship).

Apart from exceptional cases, exercising parental authority is shared between both parents, so that all decisions of an educational, health or religious nature affecting minors must be mutually agreed on between the parents; in the absence of agreement, the judge will adopt the corresponding measures. Parental rights include determining the place of residence of minors, so that any change of residence will require the parents’ mutual agreement.

Along with the determination of the exercise of parental authority, the judge will decide on the time where both parents will coexist with each child. Recent judicial practice is to set out a system of shared guardianship, so that the time spent by children in both the maternal and paternal homes is the same or almost the same. However, in the case of children under three years of age, attributing custody to the person who is their primary caregiver is usually upheld, while visitation rights are set for the other parent.

The courts have no restrictions for decisions on measures to be taken regarding a child, other than that their decision is based on the child’s best interests. This is the general principle that must be protected, and as such is included in the various international instruments for the protection of minors, as well as in Spanish domestic legislation.

Maintenance for an underage child means everything essential for sustenance, shelter, clothing, and medical assistance, including education while the child is a minor, which will be upheld when they have reached the age of majority and have not yet completed their education.

The fixing of alimony is carried out under the principle of proportionality between the possibilities of the party obliged to pay and the needs of the party receiving alimony.

Determination of the underage child’s maintenance must be judicially fixed in a judgment before it is possible to demand payment. This is based on the fact that maintenance is a public policy matter, such that, in addition to the judge, the Public Prosecutor’s Office (as guarantor of the interests of minors) must approve the alimony as being adequate to provide for the needs of the underage child.

The courts have jurisdiction to fix a maintenance allowance for children. The judicially agreed maintenance allowance may not end when the child reaches the age of 18, but be extended where the minor continues higher education with adequate results. Should they stop studying and lack their own financial means, the parents’ maintenance obligation towards their adult child continues. However, the part allocated for food (and, therefore, the amount) is reduced compared to what was allocated when the child was underage.

When the child is a minor, and even when they are a legal adult but live with one of the parents, any claim for maintenance must be initiated by the parent with whom the child lives. However, a legal adult can also initiate an action to claim maintenance against both parents.

When the parents do not agree on issues such as schooling, undergoing certain medical treatment/surgical intervention, matters of religion, or changes in the place of residence of the children, either parent may initiate legal proceedings (voluntary jurisdiction procedure). After hearing both parties in an oral hearing, the judge grants one parent the power to decide on the specific issue on which there was no agreement, and which gave rise to judicial intervention.

Civil law does not regulate parental alienation or its consequences. However, the judge will assess evidence collected during judicial proceedings when making a decision regarding the custody of the children.

Minors may not testify before the judge. However, children may be heard in matters affecting them, such as in proceedings discussing their custody and thus concerning the time each parent will spend with the children following the breakup. 

Children under the age of 12 are only heard by the judge when they possess sufficient judgement. Those over 12 years of age may be heard, but it is not mandatory for the judge to hear them (though there are exceptions in some Spanish territories).

The judge may hear the child through direct examination or through the psychosocial teams attached to the courts.

Hearing a minor is not properly considered evidence for the proceedings. It is merely one more option available to the judge before making their decision, and the opinion expressed by the minor at a hearing is one more element to be assessed (ie, not decisive). The judge may diverge from the will expressed by the child if they consider that it does not protect the child’s interests.

See 2.9 Alternative Dispute Resolution (ADR).

Matters in which minors are involved are usually only newsworthy and reported by the media when the decision is novel in legal terms. In such an instance, the case is reported but the identity of the minor is not disclosed, and in any event their identity is protected by the Data Protection Law.

Proceedings are always reserved, so the media cannot access the judicial file any more than the parties to it.

In Spain, specialisation of the courts is currently the most significant reform being demanded of the public authorities by the different legal bodies.

Presently, citizens are subject to some discrimination when accessing the courts. Depending on criteria such as place of residence, parties may have the good fortune of access to specialised family law courts, or the misfortune of having to rely on courts of first instance or mixed courts who exercise their jurisdictional functions across fields as diverse as civil, criminal or employment law, among others.

This issue is covered generally in the Preliminary Draft of the Organic Law of Organisational Efficiency of the Public Service of Justice, amending Organic Law 6/1985 of 1 July of the Judiciary, for Establishing Courts of Instance and the Offices of Justice within the Municipalities. This calls, inter alia, for the specialisation of judges and magistrates, as well as for the adequacy of the personal and material means for supporting them when fulfilling those tasks deriving from their jurisdictional role.

TAMBORERO, Abogados de Familia

Plaza Francesc Macia 5
08021
Barcelona
Spain

+34 93 2011914

+34 93 2023517

tamborero@tamboreroabogados.com www.tamboreroabogados.com
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Law and Practice in Spain

Authors



TAMBORERO, Abogados de Familia was founded in 1974 by Ramón Tamborero and is located in Barcelona (Spain). It is a highly specialised law firm providing advice to couples in crisis. In 2003, a second generation joined the firm with the addition of Paola Tamborero, expanding the firm’s professional practice into the field of international family law. Currently, it has a well-consolidated and strong professional team consisting of six lawyers and two assistants. The firm offers advice in family law related to marital crises (separation and divorce proceedings, child custody, maintenance claims, and dissolution of common property bonds), as well as preventative guidance on the preparation of pre- and post-nuptial agreements. Resolving international couple’s conflicts is a standard field of practice for the firm, and has led to its involvement in a recent decision of the Court of Justice of the European Union (CJEU) on a preliminary ruling arising from a contentious matter where the firm intervened as a party.