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Divorcio Expres!

Sarah Lucy Cooper, of Thomas More Chambers, sets out an introduction to Spanish divorce law for the English family lawyer

Picture of Sarah Lucy Cooper

Sarah Lucy Cooper, Thomas Moore Chambers

In the summer months, thoughts turn to sun, sea and sangria even for hardworking family lawyers. According to Government statistics there are over 100,000 UK nationals currently living in Spain. However when the music stops and the nights turn cold, Shirley Valentine may need advice on her position pursuant to Spanish family law.

Set out below we list the major differences between Spanish law and the law in England and Wales. This article is intended to provide something of an overview rather than specific advice, in relation to which a qualified Spanish family lawyer should always be consulted.

Legislation
The starting point for any consideration of Spanish family law is the Civil Code Articles 42-180. In addition the Ley Enjuiciamento Civil 2000 [Spanish Civil Procedure  Act 2000] is also relevant.  It should also be born in mind that certain historic territories of Catalunya, Navarra, Baleares and the Basque Country have their own personal laws that apply to certain aspects of family law and which are not identical to mainstream Spanish law 1.

Marriage and Divorce
As of 1st July 2005 the Civil Code was amended such that two people of the same sex can also marry [Article 44]. The legal effects are identical, regardless of the sex of the spouses. It is the Civil Register which keeps the record of all marriages.

It is only since 1981 that parties have been able to divorce [!]. Before then marriage was for life although the marriage could be annulled or the parties can be legally separated. In 2005 the law of divorce was again modified 2 to introduce what is commonly known as ‘divorcio expres’ an easier and simplified procedure whereby the parties can get divorced after only three months of being married.

Engagement
In relation to fiancées, the promise to marry is not contractually enforceable, however fiancés are under a legal obligation to repay to the other fiancé any expenses directly resulting from the promise of marriage, should they not marry – Article 43. Any such claim must be made within a year and must be based upon the premise that the refusal to marry was unreasonable.

Divorce
Since July 2005 either party only has to wait 3 months after marriage to seek an order for either divorce or legal separation. Further, in cases of risk to life or physical integrity to the spouse or children, these 3 months can be waived, earning the system the nickname “express divorce”. Furthermore, no grounds are needed.

The consequences of presenting a divorce petition are listed below. It is worthwhile taking time to read this list carefully as it reflects upon the nature of marriage and therefore the resolution of all financial issues between the parties:

(i) the spouses can live apart and the presumption of cohabitation ceases;
(ii) all consents and powers of attorney as between the spouses are automatically revoked;
(iii) unless there is an agreement to the contrary, the possibility ceases of one party owning the other’s goods by virtue of the parties’ domestic arrangements;

Spanish law also supports the parties coming to their own agreement and in certain cases obliges them to make proposals to the judge. This is made clear in Articles 81, 86 and 90 which provide that with a divorce petition a party must set out their proposals in relation to:

(i) residence of any children and contact with the non-resident parent;
(ii) contact between grandparents and grandchildren;
(iii) who will use the former matrimonial home

Property Regimes
When a couple marry, they have to elect for a particular regime ie separation of their assets or sharing their assets [to a greater or lesser extent]. Each region has a default position in relation to couples who have not made an express choice. The Civil Code established a system of “gananciales” ie sharing of the post acquired assets. See though Catalunya where the default position is “separacion de bienes” ie each party keeps their own assets.

It is worth bearing in mind that couples when entering into their pre-marital accords will have them signed in the form of a Notario 3. The Notary will provide objective advice to both of the parties as to the effects of a particular regime. But the parties can and will, especially if the pre-marital wealth or differences in income are substantial, consult their own lawyers. Clearly in English courts the treatment of such agreements is still a matter of argument despite Crossley v Crossley [2007] EWCA Civ 1491.

These regimes only apply to post marital assets as pre-acquired assets are outside the scope of any matrimonial property. The agreement will be followed save if the agreement is seriously detrimental to the children or one of the parties.   

Property regimes and their consequences, as well as a list of which assets form a part of ‘matrimonial property’ and which do not can be found in the Civil Code. The financial affects of a divorce pursuant to Spanish law or English law can be very different in that many assets simply fall outside of the “matrimonial pot” in Spain. 

Maintenance
As far as concepts are concerned, the nearest to maintenance that a Spanish court would order would be “alimentos” – Civil Code Articles 142 -153. The intention is that this covers all life’s necessities including sustenance, accommodation, clothing, medical treatment and education.

Such maintenance is divided into two categories which apply to different classes of relatives:

(a) restricted – ie the minimum necessary. This applies to claims against siblings 
(b) wide – this is judged according to the circumstances of the case and not by any minimum standards. This applies to claims by spouses and children but also to parents who can claim against their adult children.

Unsurprisingly, Article 147 makes it clear that the finances of the payer as well as the needs of the payee are taken into account.

The effect of the property regime above obviously affects the extent to which alimentos will be ordered.

Jurisdiction and Applicable Law
Spain is obviously a signatory to Brussels IIR in relation to issues of jurisdiction.

In relation to applicable law, Spanish law is well ahead of the Green Paper and Rome III in that the Civil Code at Article 107.2 already provides for foreign law to be applied in cases where both spouses share a foreign common nationality or habitual residence. Furthermore, this provision has been in force since 1981 although it is uncertain how well it has worked in practice. Importantly, Article 107 also provides that such foreign law shall not be applied where it would not recognise separation or divorce or would be discriminatory or it would be against public order.

Practitioners must bear in mind that in any consideration of applicable law, it is only the substantive law that is applied, not the procedural law. In cases where procedure is likely to be important, for example disclosure, specific advice should be taken as to the scope of Spanish procedural law. It was no doubt partly for this reason that £1.5 million was spent litigating in Moore v Moore [2007] EWCA Civ 361; [2007] 2FLR 339 to decide which jurisdiction would deal with the parties ancillary relief case, even though both England and Spain would apply English law.

Procedure
The Ley Enjuiciamento Civil 2000 [Spanish Civil Procedure Act 2000] governs procedure in relation to all family matters. There are some specialist family courts in most of the main cities in Spain where a specially trained family judge entertains family proceedings.

In general the Spanish courts do not have the panoply of powers available in England and Wales to search for information. In addition, the system is such that litigation in general does not impose an obligation upon a party to produce the primary documentation [such as that appended to all Form Es].

The upshot in practice is that whilst a Spanish judge has the power to order further disclosure, without material on which to base a suspicion, it becomes less likely that such power will be used. Instead parties are forced to rely upon hunches as to concealed assets, being unable to trace their movements from bank statements already revealed.

In addition, it appears that in the case of banks served with orders obliging them to disclose information, many of them take the view that to do so would interfere with client confidentiality and so refuse to abide by the order. Although the courts can go on to punish offending banks, it is yet a further step which has to be taken.

Injunctions
Entries will be made on the Land Registry if the family home is subject to an occupation order in favour of the non-registered owner spouse. It is important to note that the land registry will reflect whether a property is co-owned under a matrimonial regime such as gananciales or whether is owned privately by one of the spouses facilitating the task of establishing ownership of what is often the main asset at the time of separation or divorce.

Costs
The costs regime in Spain is similar to what is now presently the case in England, namely that the presumption is that costs do not follow the event. Even if a party is successful in their application for costs, it is unlikely that all of their costs will be covered.

Delay
Proceedings are subject to the inevitable delay of any litigation and on average would take a similar time to England. Some courts, however, have a reputation for being particularly slow and these tend to be where expats are congregated on the Costa del Sol. In addition, when there are issues of enforcement, once an order has been made by a court, there can be huge delays in actually getting the bailiffs to take possession of a property.

Section 8 Children Act orders
The Civil Code at Article 156 provides that in cases of dispute between the parents, either has the right to apply to a Judge to decide matters in relation to a child who is not “emancipado”.

The Judge should listen to the child if it is sufficiently old for his/her views to be taken into account. Interestingly, in relation to issues of residence there is an absolute obligation upon the Judge to listen to the views of any child over 12 years old – Article 159.

In any event this is perhaps not now so strange for English lawyers as it is beginning to become the case in the UK now – see the recent decision of the Court of Appeal in Re W [2008] EWCA Civ 538 and of the Northern Ireland Court of Appeal in JR v SIR [2007] NICA 50. This is clearly as a result of Brussels II R itself at Articles 41 and 42.

Article 158 lists the sorts of orders which can be made, namely:

(a) child maintenance ie alimentos
(b) injunctions protecting the child
(c) injunctions preventing an abduction including prohibitions on leaving Spain and prohibitions on obtaining a passport or requiring that a passport be withdrawn 

Pursuant to Article 314 a child becomes “emancipado” on the first of the following:

(a) reaching the age of 18
(b) if he/she marries
(c) with the agreement with the parents
(d) by agreement of the Judge

This obviously contrasts with the restrictions upon section 8 CA orders imposed by section 9 CA.

Spanish Judges have similar powers in relation to contact orders, for example supervision, and also in relation to residence.

However, in relation to the use of experts and their effect on Children Act proceedings, it is worth bearing in mind the case of ML v AL [2006] EWHC 2385 in which an Austrian court accepted the evidence of a psychiatrist who had never met the husband on whom the report was based, nor had seen his medical notes.

Mediation
On 21st May 2008 the EU Parliament and Council adopted Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters in relation to cross border disputes. This Directive binds both Spain and the UK and applies to family law. Recital 6 states that:

“agreements resulting from mediation are more likely to be complied with voluntarily and are more likely to preserve an amicable and sustainable relationship between the parties.”

The Directive provides that all Member States shall ensure that the parties to a written agreement resulting from mediation can have the content of their agreement made enforceable.

Notes
1. Application of these laws depends on the domicile of the spouses. See E. Merino-Blanco, Spanish Law and Legal System (Sweet & Maxwell, 2nd ed. 2006) pp. 55-57
2. By the Ley 15/2005 of 1st July
3. About the role of a Spanish Notary in general, see E Merino-Blanco, op.cit, pp. 93-95

Sarah Lucy Cooper
Thomas More Chambers
Barrister and Resolution Trained Family Mediator
Vice Chairman British Spanish Lawyers’ Association – www.bsla.org.uk
slcooper@thomasmore.co.uk

Elena Merino-Blanco
Senior Lecturer in Law (Bristol Law School, UWE)
Spanish Law Consultant
Elena.Blanco@uwe.ac.uk