Spain

Sources of Law

Civil law -Spanish Family Law is regulated by the Spanish Civil Code (Codigo Civil) and supplementary Laws.

Some autonomous regions (for example Catalonia and the Basque Country) use local legislation instead.

Jurisdiction

Brussels II (EC Regulation 2201/2003) applies.

The Spanish Court has jurisdiction on the following grounds:

a- The Petitioner and the Respondent are both habitually resident in Spain.

b- The Petitioner and the Respondent were last habitually resident in Spain and the [Petitioner] or [Respondent] continues to reside in Spain.

c-The Respondent is habitually resident in Spain.

d- In the event of a joint application, either the Petitioner or the Respondent is habitually resident in Spain.

e-The Petitioner is habitually resident in Spain and has resided there for at least one year immediately prior to the issue of the Petition.

f-The Petitioner has been habitually resident in Spain for a period of at least six months prior to the issue of the Petition and is also a Spanish national.

g- The Petitioner and the Respondent are both Spanish nationals.

Domicile and Habitual Residence

Article 40 of the Spanish Civil Code provides that domicile is where a person has their habitual residence.

Article 50 of The Civil Procedural Code (LEC) refers to domicile.

Both “habitual residence” and “domicile” have the same meaning in Spanish law.

Conflict of Law/Applicable Law to be Applied

Article 107 of the Spanish Civil Code provides that it will bethe common national law of the spouses at the time the petition was filed.

In the absence of a common national law, the law applicable will be that of the common place of habitual residence of the spouses at the time of the petition. If there is no such common place, it will be the law of the last common place of habitual residence, if one of the spouses lives there.

As long as there is mutual agreement between the parties, Spanish Law may be applied provided that one of the spouses is Spanish and has habitual residence in Spain.

Pre-Nuptial Agreements

Valid and enforceable where they are not seriously detrimental to one of the parties or any children.

The agreement must be signed before a public notary and subsequently registered at the Spanish Civil Registry.

Divorce

No grounds are required by the new law but three months must have elapsed between the date of the marriage and the date in which the application for divorce is submitted.

Divorce is initiated by filing the petition. A regulating agreement (a contract agreed by both parties, dealing with arrangements for children, the family home, maintenance and capital) can also be filed.

The court will determine the contents of the regulating agreement in the absence of agreement between the parties.

Finances/Capital/Property

Parties can establish their matrimonial property regime before marriage or modify it during the marriage. If they do not agree upon the matrimonial property regime applicable, each Spanish autonomous region can apply its own economic regime. Most of Spain applies the Joint Ownership Regime (whereby assets and income are shared irrespective of who the asset owner is and irrespective of who earns the income).

Catalonia for example, applies the Separation of Assets Regime (whereby assets acquired / income earned during the marriage is not shared by the spouses).

Note: irrespective of the regime applied, the judge can make orders to compensate a spouse who is disadvantaged by the divorce, or for the support of children from the marriage.

The matrimonial home will usually be allocated to the parent who has primary care of any minor(s).

Pre- marital assets and inherited wealth are generally excluded.

Finances/Maintenance

Maintenance depends upon an imbalance of factors including length of marriage, health, employment prospects and the parties’ skills.

The courts have wide discretion in the absence of a regulating agreement.

Child Maintenance

There is no fixed formula for calculating child maintenance; the amount payable depends on all the circumstances of the case.

Cohabitants

There is no state legislation in this field; however some Autonomous Communities have regulated this situation. These Autonomous Communities recognise a relationship if the couple meet certain criteria.Such a couple can then settle “de facto relationship articles”, private contracts, bank contracts and contracts with third parties.

Civil Partnership/Gay Marriage

In July 2005 new legislation was passed allowing same-sex couples to marry in Spain.

The law puts same-sex and heterosexual marriages on the same legal footing, including the right to adopt children.

With thanks to Alberto Perez Cedillo of Spanish Lawyers and Solicitors, 1 New Square, Lincoln’s Inn, London. WC2A 3SA. www.apcedillo.com