Divorce has become something really common in Spain. And that is not only true for nationals, there are many foreigners from all around the world who also get divorced in the country. And that, for sure, poses many questions. But in this article we will solve them all. We will explain, step by step, how divorces work in Spain, which are its legal consequences for both parties, what happens with their children and how that affects this legal procedure, and other really useful considerations that will help you understand the whole picture (as well as allowing you to save time and money).
When did Spain allow divorce?
Let’s start with a bit of history before diving deep into the topic.
Spain has changed quite dramatically in many legal aspects since the dictatorship was the ruling modus operandi.
It was not until 1981 that Spain allowed divorce legally, and since then the percentage of new unmarried couples hasn’t ceased to grow.
So before the 30/1981 law was approved in the Parlament, no one even considered discontinuing their relationship.
That was something they took for granted, and if any marital problem arose, efforts were made to solve it (or at least to make it seem as they were solved).
Is divorce common in Spain?
Over 60%. That is the likelihood that any couple that gets married in Spain will get divorced in the near future.
Which are the reasons that can explain this alarming situation?
First of all, the ease with which Spaniards can get divorced. After a new Government Bill was introduced 15 years ago, the process is much faster and easier now.
And on the other hand, a new social and household structure in which women are leaving behind the traditional housekeeper role they had for many decades is also helping enlarge those numbers.
Of course, infidelity and lacking marriages from the romantic standpoint are also huge determinants that contribute to the statistics the country faces.
Who can get divorced in Spain?
This may be the first important question that must be addressed. Who can actually get divorced in the country in a legal way that is then recognized as valid?
First of all, two Spanish nationals that are married to each other. That is obvious.
But there are other groups.
Couples made of one Spanish national and one foreigner can also start the procedure.
But even marriages made up of two foreigners in which none of them is from Spain are allowed to get divorced in the country. As long as one of them is a legal resident in Spain the breakage can take place; and that will be true even though they got married in any other country like Germany or France.
Bear in mind that it is possible that one member of the couple goes back to his or her country, and also asks for a divorce petition there (after the spouse in Spain has done the same here). Which country will officially manage the process? The answer is simple: the court that first received the demand.
Is a divorce processed in any other country recognized in Spain?
That depends on where you got married in the first place.
If you got divorced in any other EU country before moving to the Spanish territory, Spain will automatically recognize that divorce (without the need to formalize any extra step). And that is because Spain agreed to be part of The Hague Convention for marriages.
But if you are coming from a non-EU country, even though the divorce is recognized, you will need to embark on an extra procedure to validate it in the country.
And this also helps us understand one of the main reasons you really want to get divorced and do it in a way that it’s legally recognized.
If you want to get married again, no matter with whom, you must be legally divorced first. Otherwise, the new marital relationship won’t be valid.
And yes, you can remarry the spouse you got the divorce with.
Which are the requirements you must fulfill to start the procedure?
They are really easy to meet and straightforward. And that is because the Spanish law is nowadays no-fault. Even though years ago it was something required, today you don’t need to provide any reason or justification to get divorced.
You just need to make sure that:
- You have been married for at least 3 months
- You have lived in Spain for more than 6 months before the separation. You must provide evidence for this, like your town hall registration (empadronamiento)
- One of the two members of the couple is a Spanish national or Spanish resident
Furthermore, and unlike the US, there is no need to be separated for any amount of time in order to start the process.
Types of divorce
There are basically two different types of divorces in Spain. The exact steps and procedure length will widely vary depending on whether you are in the first or in the second situation.
So, which are these two types?
An uncontested divorce takes place when both parties agree (mutual agreement) to discontinue their marital relationship in an amicable or friendly manner.
As there is mutual consent, this type of divorce is much faster and cheaper.
Why? Because there’s a mutual agreement between both parties regarding the main issues to be discussed.
Hence, there is no need to have a judge intervene regulating any clause: both parties will do that on their own through a written contract.
After a verbal agreement is reached, it must be translated into a written one, which is called governing convention (in a second we will explore all the clauses it must include).
That governing convention will be submitted (along with the claim) at a public notary or before the judicial secretary of the judicial district that corresponds to the couple’s address.
On the other hand we find the tedious and long type of divorce: the contested one.
This happens when no amicable agreement is reached, and it will be a judge through a judicial procedure who dictates the new regulatory situation between both parties.
This type of divorce can be decreed by the judge even though just one of the members of the couple requests it. In fact, just one of the two members of the marriage will file the divorce in this case.
We are talking about a longer process, more expensive and complex in terms of negotiations. And, even worse, more emotionally demanding.
It will be the lawyers of both parties who do the negotiation and try to reach an agreement. It is not advisable that both members of the couple are the ones who directly talk over the main issues, as it would take forever to reach common grounds.
Consequences of a divorce
The first step in the divorce process, way before making any decision, is to get the assistance of a lawyer in order to discuss your situation and see what options you have available.
And that will be useful not only to get legal guidance, but also to understand the probable outcome.
Understanding the consequences your divorce will produce is key, as it may be much better to get divorced in your home country (or a different one than Spain), as each different countries regulate this legal procedure differently.
Nevertheless, the general rule in Spain is really flexible and outcome-friendly.
Which are the consequences of a divorce for the main areas that are discussed?
Division of assets and wealth distribution
Every case is different, and the judge has the power to define how assets and debts will the finally distributed.
The first thing this jury will consider is the couple’s children and its best interest. That will be the main determinant of the final decision.
The court will understand where children are living, and it is even possible that they are required to stay in that same house with the mother (the one that usually keeps the custody) even though it was the father the one purchasing the property.
Once the child’s interests are covered, the law takes into consideration the existing marital regime, which differs according to the Spanish region in which both members live:
- If you are under “comunidad de bienes” (communal regime), everything bought during your marriage belongs to both parties, split into equal halves, 50% to each. This just includes assets bought or money earned after entering the marriage: what each possessed before that will still be their possession; the rest will be split.
- If you are under “separación de bienes” (separation of ownership), each keeps fully what they earned individually during the marital relationship.
But what happens if you were married abroad? If your home country does have this same two regimes, the one applicable will be the one you signed when you got married. And that would be applicable in Spain too. But if the country does not have those two, the closest or most similar one will be applied.
The weaker party financially may be benefited from the possibility to obtain an economic compensation.
That entirely depends on the situation of both members, current and during the marital relationship.
If that weaker party, for example, has devoted a huge amount of time taking care of the children and renouncing to his or her career, then it’s likely that he or she will receive that compensation.
Other situations must be taken into account, like the age of both members and their likelihood of finding new sources of income now that the marriage is over. For example, if the weaker party is over 50 years old and can’t find a new job, that economic compensation is more likely to happen.
But at the end, the exact amount, how long that money will be paid, and if it actually is paid will depend on the judge’s decision.
Children: custody and alimony
The most common in Spain is that the children end up living with the mother, even though legally speaking the father has the same right.
And here we find a crucial component: the alimony.
The parent that is not living with the children has the obligation to collaborate to their maintenance by submitting a pension each month (alimony). And that does not depend on the income he or she receives, it’s obligatory by law, and failing to fulfill that obligation may mean going to jail.
But there’s an extra compensation that does depend on your income level, and the exact amount will be decided by the judge (as long as there is no agreement between both parties), according to the total income and wealth possession.
When will that alimony or monthly payments come to an end?
Unless you set a clause that specifies that those payments will end up once the child turns 18 (legal age in Spain), the law dictates that payment must be maid until he or she becomes financially independent (and there’s no upper limit for that).
As you can see, the Spanish law tries to protect the children of the family as much as possible, ensuring their interests are protected. They must have a proper house to live in and money to cover their expenses.
That is why even though both parties submit an agreement, the public prosecutor will carefully review it and approving or disapproving it, but always being fully involved in any issue that relates to children.
Will and inheritance
The relationship between Spanish divorce law and the inheritance one is quite different from what you may find in countries like the UK.
In Spain, a marriage does not cancel any disposition established in your written will. Even though you get divorced, you still need to change your will if you want to change your heirs.
So even if the will mentioned you left everything to your “husband” (which is no longer the case), your possessions will go to your now ex-spouse if you don’t draft a new one.
What should you include in your agreement?
As we have already seen, one of the crucial steps of the process is creating an agreement in which each of the important aspects is detailed.
This is of course another of the reasons that explain why it’s crucial to request the services of a lawyer: the agreement must cover everything that’s relevant, and you can’t leave any key clause or aspect behind.
So what should you include and try to regulate?
- Who will have custody of the children
- When and how will you manage the visiting regime
- Type of education the children will receive from now on
- Asset distribution
- If there’s any alimony and which is the exact amount
- The right to live in what had been their house up to this point
- Economic compensation to the weaker part financially speaking (if any)
Once that agreement is reached and written, it must be submitted to the court. A judge will evaluate each and every clause, and include any modification if required.
That revised version is submitted to the Civil Registry, and can be appealed if one of the parties is not happy with the result.
Documents to be submitted
The list of required documents is also really short.
- First of all, you’ll need to provide your marriage certificate.
- If you have kids, their birth certificate.
- When it comes to financial disclosure, both parties must submit their income tax declaration for the past 3 years and their payslips.
- Finally, you will also need to make a list of all your assets, annual mortgages, debts, and your children’s annual expenses
All this information will be considered by the judge and used for the final legal consequences that will affect both parties.
Bear in mind that all documents must be legalized and translated into Spanish by a sworn translation.
How long does it take to get a divorce in Spain?
If there are no children involved and for really simple divorces, it can be done in just 4-6 weeks.
Nevertheless, things can get longer and more complicated easily.
If you have children, as the public prosecutor will be involved making sure their interest is respected, that work to review the agreement enlarges the length of the process.
So it can be 4 to 6 months if there are no confrontations against both parties if children are involved, but uncontested divorces can take up to 1 year or more.
How much does a divorce cost in Spain?
The exact amount will depend on the type of divorce, its length, and its complexity. But usually the price will range from 1.000€ to 1.500€, including procurator costs, power of attorney and legislation of the documents.
Nevertheless, if the agreement is contested and the process becomes complicated, then the amount can increase slightly.
If you need to know an exact amount of would directly like our lawyers to help you out during the whole divorce process, do not hesitate to help you out.
We have helped hundreds of foreigners in the same situation, and we want to be next to you during the most crucial times.