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Divorce - Spain

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the legal consequences of a divorce as regards: 3.
a) The personal relations between the spouses? a)
b) The division of property of the spouses? b)
c) The minor children of the spouses? (See “Responsabilidad parental – España” [Parental responsibility – Spain]) c)
d) The obligation to pay maintenance to the other spouse?(See “Obligación de alimentos – España” [Maintenance obligation – Spain]) d)
4. What does the legal term “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non judicial means for solving issues relating to divorce without going to court? 10.
11. Where should I lodge my application (petition) for divorce / legal separation / marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
a) Where to lodge my petition a)
b) Formalities and documents b)
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce / legal separation / marriage annulment? 13.
14. What should I do to have a decision on divorce / legal separation / marriage annulment issued by a court in one European Union country recognised by another Member State? 14.
15. To which court should I turn to oppose a decision on divorce / legal separation / marriage annulment issued by a court in one European Union country being recognised by another Member State? Which procedure applies in these cases? 15.
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Spain or who are of different nationality? 16.

 

1. What are the conditions for obtaining a divorce?

After the reform operated by Law 15/2005, divorce in Spain does not require a previous judicial separation nor the concurrence of causes legally determined. This means that it is possible to sue directly to get a divorce without an invocation of a cause (divorce needs always a judicial decision).

The divorce procedure can be initiated at the request of one of the spouses, at the request of one of them with the consent of the other or at the request of both spouses. For it to be granted, only the following requirements are needed:

  1. Three months need to have past from the celebration of the marriage if the divorce is interested at the request of both spouses or of one with the consent of the other.
  2. Three months need to have past from the celebration of the marriage if the divorce is interested at the request of only one of the spouses
  3. There’s no need of some time past from the celebration of the marriage to get a divorce when there is an evidence of risk for the life, physical integrity, freedom, moral integrity or sexual indemnity for the spouse that is the plaintiff in the divorce case ot for the children of both spouses or of one of them.

Due to the system described, it can be said that for divorce to be granted, it is enough with the requirements above mentioned so that in principle (and except in the last situation), the defendant cannot oppose divorce based on material reasons

But besides suing directly for divorce, the Spanish legislation also foresees the possibility of asking for a legal separation in which common life is suspended but the marriage is not dissolved.

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As it’s been said before, divorce (as well as legal separation) can be asked:

  • At the request of only one of the spouses
  • At the request of both spouses or one of them with the consent of the other.

In the first case the claim must include a proposal of the measures that should regulate the effects derived from the divorce or the separation. These measures will be the object of debate during the process, being the Judge the one that decides on them if there’s no agreement reached between the spouses.

In the second situation the claim must include an agreement reached between the spouses on the measures that are to be adopted. They are those that affect: the common address, the care and support of the children, the division of the common properties, and the possible pensions between the spouses.

The regulation of separation and divorce is fully operative in relation to all kinds of marriages either integrated by people of the same or different sex since from Law 13/2005 the Spanish legislation recognizes men and women have the right to contract marriage, and marriage is subject to the same requisites and effects independently wheter the spouses are from the same or different sex.

2. What are the grounds for divorce?

After the reform done by Law 15/2005, divorce in Spain does not require of the concurrence of cause as the maintenance of a marriage is considered as a manifestation of the freedom of the spouses.

The only thing that needed is the respect of a minimum term to count from the celebration of the marriage before suing for divorce (safe in certain cases). This term is the following one

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  1. Three months need to have past from the celebration of the marriage if the divorce is interested at the request of both spouses or of one with the consent of the other.
  2. Three months need to have past from the celebration of the marriage if the divorce is interested at the request of only one of the spouses
  3. There’s no need of some time past from the celebration of the marriage to get a divorce when there is an evidence of risk for the life, physical integrity, freedom, moral integrity or sexual indemnity for the spouse that is the plaintiff in the divorce case ot for the children of both spouses or of one of them.

3. What are the legal consequences of a divorce as regards:

a) The personal relations between the spouses?

The first effect of divorce is that the bond of marriage is dissolved. In consequence, there is no longer any duty to cohabit or duty of mutual assistance that flows from it, and both spouses are again free to contract new marriages.

Just as, in Spain, marriage does not entail the loss of their name on the part of either spouse, so neither does divorce result in any change of name. The only change in the personal condition of the spouses occasioned by divorce is the change in marital status, from married to divorced.

b) The division of property of the spouses?

Divorce brings about the dissolution of the financial situation arising out of a matrimonial relationship and the liquidation of whatever joint assets they may have accumulated, culminating in the division of the common property, a process that will be determined by the financial arrangements that may have governed the marriage.

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c) The minor children of the spouses? (See “Responsabilidad parental – España” [Parental responsibility – Spain])

The divorce decision does not affect relations between the parents and the children of the marriage, except as regards custody, on which the court that grants the divorce has to rule, either awarding custody to one of the spouses while arranging visiting rights for the other, or else arranging for shared custody by both spouses.

For a shared custody to be granted in principle there needs to be an agreement between the parents (reached either in the initial proposal of regulating agreement, or during the procedure), although exceptionally the Judge (at the request of one of the parents and always with a favorable opinion of the Prosecutor) can decide to grant a shared custody founding the decision in the fact that only through of this regime of custody the superior interest of the minor is well protected.

The underlying principle is that divorce does not absolve the parents from their responsibilities towards their children, so that both will be required to contribute to their maintenance.

Normally this means that the spouse without custody of the children is required to make maintenance payments to the one who does have custody of them, until they become financially independent or are seen to have failed to achieve that situation through their own fault.

d) The obligation to pay maintenance to the other spouse?(See “Obligación de alimentos – España” [Maintenance obligation – Spain])

Divorce removes the duty to cohabit and to provide mutual assistance; accordingly, neither spouse has any duty to support and maintain the other. However, where divorce leads to a financial imbalance for one spouse with respect to the other, so that the spouse in question is worse off than before the marriage breakdown, the adversely affected spouse is entitled to receive maintenance payments from the other that will correct that imbalance.

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4. What does the legal term “legal separation” mean in practical terms?

Legal separation means the end of the joint life of the spouses, in other words an end to the duty of cohabitation, without affecting whatever maintenance arrangements may be arrived at as being appropriate to correct any imbalance. At the same time, neither spouse has the possibility any longer of using the other’s assets to defray matrimonial expenses.

5. What are the conditions for legal separation?

As with divorce, after the reform done by Law 15/2005, legal separation in Spain does not require of the concurrence of cause as the maintenance of a marriage is considered as a manifestation of the freedom of the spouses.

The only thing that needed is the respect of a minimum term to count from the celebration of the marriage before suing for dlegal separation (safe in certain cases). This term is the following one

  1. Three months need to have past from the celebration of the marriage if the legal separation is interested at the request of both spouses or of one with the consent of the other.
  2. Three months need to have past from the celebration of the marriage if the legal separation is interested at the request of only one of the spouses
  3. There’s no need of some time past from the celebration of the marriage to get a legal separation when there is an evidence of risk for the life, physical integrity, freedom, moral integrity or sexual indemnity for the spouse that is the plaintiff in the divorce case ot for the children of both spouses or of one of them.

6. What are the legal consequences of legal separation?

The legal consequences of legal separation are the same as those for divorce, with the one exception that it does not lead to the bond of marriage being dissolved. Accordingly, there is the possibility of a reconciliation with complete restoration of the marriage and without the need for the spouses to enter into a new contract.

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7. What does the term “marriage annulment” mean in practice?

Marriage annulment means a judicial declaration that the marriage contracted suffered from defects such as to make it null and void from the outset, the judicial declaration meaning in effect that the marriage never existed and has therefore produced no effects. Accordingly, both spouses regain their status of ‘single’ persons.

It involves the dissolution and liquidation of the matrimonial financial arrangement and the duty of cohabitation and mutual assistance.

In contrast to what happens in cases of legal separation or divorce, the fact that no marriage ever took place prevents any compensatory allowance being payable, which requires a valid marriage to have existed; a situation that is mitigated by the possibility of the spouse who had acted in good faith being awarded a payment in damages in cases where the other spouse had acted in bad faith in contracting the marriage.

As regards children, they continue to have the same legal status as that which they enjoyed prior to the decree of annulment and it is therefore the same as in the case of legal separation or divorce.

8. What are the conditions for marriage annulment?

The conditions that lead to the annulment of a marriage are as follows:

  1. That either party had not given their consent to the marriage being contracted.
  2. That the marriage had been contracted despite the existence of a known impediment to marriage:
    1. One of the parties to the marriage was an unemancipated minor, except where the person in question was older than 14 years and had obtained judicial dispensation (age impediment).
    2. One of the parties was already bound by marital ties at the time the second marriage was contracted (bigamy).
    3. One of the parties is a lineal ascendant or descendant or an adoptive child of the other (consanguinity).
    4. One of the parties is related up to the third degree to the other - uncle to niece - except where judicial dispensation has been obtained (consanguinity).
  3. That one of the parties had been convicted of the murder, or of being an accomplice to the murder of the other, except where a pardon has been granted by the Ministry of Justice.
  4. That the marriage took place without the presence of a judge, mayor or other qualified official or without the presence of witnesses. However, the validity of the marriage would not be affected either by the lack of competence of the person officiating at the marriage or by the latter’s holding no legitimate appointment, provided that at least one of the spouses had acted in good faith and that the official had exercised his functions publicly.
  5. That one of the parties had contracted the marriage while being in error as to the identity of the other or as to such of his personal qualities as might have been decisive in giving his consent to contracting the marriage.
  6. That one of the parties had contracted the marriage under duress or through serious fear.

9. What are the legal consequences of marriage annulment?

The fact that the marriage has been annulled establishes its lack of validity since it was contracted. It is on these grounds that the spouses regain their status of single persons.

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However, any effects already produced in an annulled marriage between the time it was contracted and the date of the annulment decree remain valid where the children and the spouse or spouses who acted in good faith are concerned.

In the process of breaking up the apparent marital home, the spouse who had acted in bad faith does not share in any profits made by the spouse who had acted in good faith.

On the other hand, if there had been cohabitation, the party who had acted in good faith can obtain compensation to put right any financial imbalance that may have been caused by the decree of annulment.

10. Are there alternative non judicial means for solving issues relating to divorce without going to court?

In Spain no State Law regulates family mediation. Nevertheless there are some Laws from the Autonomic Communities that do so. They are Law 5/1997 of 25 of June, that regulates the system of social services in the Valencian Community, Law 4/2001 of 31 of May that regulates family mediation in Galicia, Law 1/2001 of 15 of March of family mediation of Catalonia, Law of 19 of December of 2001of the Valencian Community, Law 15/2003 of 8 of April on family mediation in the Canary Islands or Law of 2 of June of the 2005 of Castile-La Mancha.

This lack of a State Law does not prevent the possibility of reaching agreements between the parties in the process. Art. 55 of EU Regulation 2201/2003 establishes that central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to among other facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end. At level of the European Union there is also a Proposal of Directive of the European Parliament and the Council of 22 of October of 2004 on certain aspects of mediation in civil and commercial matters being its precedent the publication of a Green Book on 19 of April of 2002 on the alternative dispute resolution in civil and commercial law. In the Action Plan of June of 2005, the adoption of the Directive on ADR-Mediation is foreseen for 2.006.

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In relation to family mediation, Law 15/2005 of 8 of July declares in its introduction the establishment of mediation as an alternative voluntary resource for the solution of the family claims to try to get to a mutual agreement with the intervention of an impartial and neutral mediator. This Law introduces a new rule 7ª I art. 770 of the Civil Procedure Law. It grants the parties the possibility of asking for the suspension of the procedure of legal separation or divorce in case they want to try to reach to an agreement. This suspension is to be granted in accordance to art. 19,4 of the Civil Procedure Law and it includes the possibility of contacting a mediator. Besides this there is a compromise on the part of the Government (included in the Final Disposition Three of the Law) to send a Draft Law on mediation based on the principles established by the European Union, and, in any case, in those of voluntariety, impartiality, neutrality and confidentiality, and in the respect of the mediation services created by Ithe Autonomous Communities. This impulse given to family mediation by Law 15/2005, of 8 of July is very important as it is added to the contents of art 55 of EC regulation 2201/2003.

Besides that in Spain there is a Law on Gender Violence (Organic Law 1/2004 of 28 of December) that sets measures of integral protection against the gender violence. In that Law its art 44 adds an article 87 ter in the Organic Law on the Judiciary (Law 6/1985 of 1 of July) that sets the jurisdiction of the Courts of Violence against Women in civil and penal matters indication in point 5, that in these situations of gender violence, mediation is forbidden.

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11. Where should I lodge my application (petition) for divorce / legal separation / marriage annulment? Which formalities must be respected and which documents should I attach to my application?

a) Where to lodge my petition

Any Spanish court can hear petitions for legal separation, divorce or marriage annulment when:

  • Both spouses have Spanish nationality.
  • Both spouses usually live in Spain.
  • The respondent usually lives in Spain.
  • The last usual place of residence of both spouses was in Spain, in the event that one of them still lives there.
  • Spain is the usual place of residence of either of them if the petition is being filed jointly.
  • Spain is the usual place of residence of the petitioner if he or she has lived there for at least one year immediately prior to filing the petition, or if he or she has lived there for at least six months immediately prior to filing the petition and is moreover of Spanish nationality.
  • Spanish courts may also have jurisdiction if the parties come before them expressly or tacitly or when the petitioner is Spanish and lives in Spain, with no other determining factors, but in those cases there is the possibility that the decision arrived at by the Spanish courts may not be recognised in other Member States of the European Union.

On Spanish territory, the petition for divorce, legal separation or marriage annulment has to be filed before the Court of First Instance, and specifically the Court of First Instance:

  • In the place where the marital home is located
  • If the spouses are living in different administrative areas, the petitioner can choose between
    • the place where the marriage partners last lived together or the respondent’s place of residence;
    • if the respondent has no fixed place of residence or abode, the petition may be filed in the place where the respondent is or last resided, as the petitioner chooses.
  • Failing all the above criteria, the petition should be filed before the Examining Magistrate in the petitioner’s place of residence.
  • When the petition for divorce or legal separation is filed jointly by both spouses, they can do this before a Magistrate in the place where they last lived together or in the place of residence of either of the petitioners.
  • Applications to have preliminary provisional measures adopted can be heard by the Examining Magistrate in the applicant's place of residence.

To find out more about the Spanish judicial system, see Partidos judiciales español(Administrative areas).

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b) Formalities and documents

The petition for marriage annulment, legal separation or divorce has to be submitted in writing and signed by the lawyer assisting the petitioner and the public prosecutor who represents him. The services of these professionals may be shared when the spouses are filing jointly for legal separation or divorce.

Petitions for legal separation, marriage annulment or divorce must without fail be accompanied by:

  • Marriage certificate and, if applicable, birth certificates of the children must be produced - it is not sufficient simply to bring along the Libro de Familia.
  • Documents on which the petitioning spouse or spouses are basing their case.
  • Documents that enable an assessment of the financial situation of the spouses and, if applicable, of the children, such as tax returns, pay slips, bank certificates, title deeds or documents from the Property Registrar, in the event that the parties are petitioning for means of a property nature.
  • Draft Settlement Agreement if the legal separation or divorce is being filed for by means of a Joint Petition.

12. Can I obtain legal aid to cover the costs of the procedure?

Spain acknowledges the right to legal aid for anyone who can demonstrate they have insufficient funds to go to law, without discrimination on grounds of nationality.

Those natural persons are regarded as lacking the resources to go to law whose income and financial resources, computed annually for all effects and purposes and per family unit, do not exceed twice the national minimum wage in force at the time of the application for legal aid. (Salario Mínimo Interprofesional español).

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The application must be submitted to the Colegio de Abogados (Bar Association) in the same locality as the court or tribunal that will be holding the main hearing, or to the court in the applicant’s home town; in the latter case the judicial body will pass notification of pleading to the territorially competent Colegio de Abogados.

Bar Associations (Colegios de Abogados) have been designated as receiving authority of the requests on trans-border litigations. In them the requesting authority is the Colegio de Abogados that corresponds to the habitual residence or address of the applicant.

The European citizen whose State is part of the Agreement of the Council of Europe on Transmission of Requests of Legal Aid, will be able to direct the request to the Central Authority designated by his country for the application of this agreement.

The request needs to be presented before the process is started or, if the requesting party is the defendant, it needs to be done before response to the claim. However, both the plaintiff and the defendant can ask for legal aid on another momento if thet justify that their economic circumstances have been modified.

When there are insufficient common assets and one of the spouses is unable to obtain legal aid because the financial position of the other prevents it, the latter may be obliged to bear all or part of the costs of the litigation under a procedure known as “litis expensas”.

13. Is it possible to appeal against a decision relating to divorce / legal separation / marriage annulment?

Decisions handed down by Spanish courts in proceedings for legal separation, divorce and marriage annulment are open to appeal. The appeal must be lodged within five days before the Examining Magistrate who handed down the decision being appealed, and before which the appeal is formally drawn up, the corresponding Provincial Court having jurisdiction in the matter.

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In Spain, decisions handed down in proceedings relating to marriage annulment, legal separation and divorce are not subject to provisional enforcement when they are appealed; on the other hand, the appeal does not suspend the effectiveness of measures adopted in the decision, which are directly enforceable even if an appeal has been lodged.

In proceedings for legal separation and divorce instituted jointly by the spouses, the court decision or resolution which gives effect to the legal separation or divorce and approves in its entirety the Settlement Agreement presented to the Judge for his approval, is not open to appeal, except for the Attorney General’s office, if it is involved, which can make an appeal in the interests of any young or incapacitated children. In these proceedings by Joint Petition, the court decision rejecting the petition for divorce or legal separation or any or all of the measures proposed by the spouses is open to appeal. In these cases, the appeal against the resolution deciding on the measures will not suspend their effectiveness nor have any effect on the binding nature of the decision in relation to the legal separation or divorce.

As regards provisional and preliminary measures that a Judge may adopt before or during the course proceedings for legal separation, marriage annulment or divorce, it should be made clear that resolutions agreeing to the adoption of such measures are not open to appeal, even though the decisions handed down do not constitute a final and conclusive judgment and are not at this stage binding. Resolutions on provisional measures are reviewed not by means of an appeal but through the judgment that finally disposes of the proceedings for legal separation, marriage annulment or divorce.

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14. What should I do to have a decision on divorce / legal separation / marriage annulment issued by a court in one European Union country recognised by another Member State?

In this matter, preference should be given to the implementation of Council Regulation 2201/2003 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, which is in force in all the Member States with the exception of Denmark.

If the only aim is to update the particulars in the Civil Register of a Member State on the basis of court decisions relating to proceedings for divorce, legal separation or marriage annulment handed down in another Member State, and if the latter decisions are no longer open to judicial appeal, it is sufficient simply to present to the Registrar of Births, Marriages and Deaths in each country an application to that effect accompanied by:

  • a copy of the decision, which should embody the necessary requirements for determining its authenticity according to the law of the country that issued it,
  • a certificate conforming to the standardised official model issued by the national court or tribunal or competent authority in the Member State in which the decision had been delivered,
  • a document testifying to the papers having been properly served on the respondent or certifying that the latter accepted the decision, in the case of a decision delivered in absentia.

If seeking to obtain recognition in Spain for a decision in relation to a divorce, marriage annulment or legal separation that was delivered in one of the Member States, with the exception of Denmark, or a declaration in Spain that the said decision should not be recognised, an application for recognition would need to be filed, without any indication that the decision is binding in the Member State in which it was delivered, before the Examining Magistrate in the place of residence of the person against whom the application for recognition or the declaration of non-recognition is being filed. If the respondent does not live in Spain the application may be filed wherever he happens to be in Spain or in the locality of his last place of residence in Spain or, failing all the foregoing, in the place of residence of the petitioner.

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The application should be submitted in writing with lawyer and public prosecutor and accompanied by the same documents as in the previous case.

Recognition in Spain of decisions delivered in Denmark is governed by Spanish law. Procedural formalities begin with the formulation of the application, which is then filed directly with the Spanish Supreme Court.

15. To which court should I turn to oppose a decision on divorce / legal separation / marriage annulment issued by a court in one European Union country being recognised by another Member State? Which procedure applies in these cases?

As can be deduced from the answer to the previous question, the procedure for applying for a decision not to be recognised is the same as that used in applying to have it recognised. If the decision was recognised in accordance with Council Regulation 2201/2003 any objection can only be filed after notification of the decision granting recognition and, within the time-frame laid down by law, an appeal will need to be lodged with the relevant Provincial Court. If the matter concerns a decision delivered in Denmark, the objection has to be raised while it is still before the Spanish Supreme Court and while the latter is considering the other party’s petition for its recognition. In all cases it is necessary to have the services of a lawyer and public prosecutor to formally present the objection.

16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Spain or who are of different nationality?

In Spain, legal separation and divorce are governed by the national law common to the spouses at the time the petition is filed and, in the absence of a common nationality, by the law obtaining in the usual place of residence of the marriage partners or in defect of this one by the law of the last common place of residence of the marriage if one of the spouses still resides habitually in that State.

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In any case, Spanish Law will be applied when one of the spouses is Spanish or resides habitually in Spain:

  1. If none of the laws mentioned above is applicable.
  2. If the claim is put before a Spanish Court and the legal separation or divorce is requested by both spouses or by one with the consent of the other.
  3. If the laws indicated in the first paragraph did not recognize separation or divorce or do that in a discriminatory way or against public order.

On the other hand, the law governing legal separation, divorce and marriage annulment is, moreover, is that which is applied to analyse both the causes of the marital breakdown as well as its consequences and effects.

The ending of the marital arrangement is governed by contracts and agreements between the spouses, to the extent that they conform to the law governing matrimonial matters, as well as the law of the country or usual place of residence of either party at the time when the decree was granted.

Relations between parents and children are governed by laws on child protection or, failing that, by the law obtaining in the child’s usual place of residence.

In the matter of provisional and precautionary measures, logically enough, the same law should be applied that governs the legal separation, marriage annulment or divorce in each case.

As regards accreditation and testing of foreign law in Spain, if this were to be the specific case, its content and validity will need to be tested, the Spanish court being free moreover to avail itself of whatever avenues of enquiry it may deem necessary for its application.

Finally it must be stressed that processes substantiated in Spain are always governed by Spanish procedural law, independently of the law applicable in divorce, legal separation or marriage annulment, the sole exceptions to this being those envisaged in Conventions and Treaties to which Spain is a signatory, as happens in the case of Community legislation which, on occasions, contains procedural law that takes precedence over Spanish procedural law.

Further information

« Divorce - General information | Spain - General information »

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Last update: 03-07-2007

 
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