Regional Divorce Law in Spain:Andalucía

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If you are thinking about getting divorced in Spain

please make sure to view:

10 Must Know Facts For Anyone Planning To Divorc

e in Spain

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Which law Applies?

If a couple who are both English and were married in

England but live in Andalucía, which law is applied to their

divorce proceedings?

How about a couple who possess different nationalities, both

having been resident in Andalucía?

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Which law Applies?

The Spanish Civil Code (Art. 107) provides that the laws

applicable to divorce proceedings in Spain shall be:

1) The law of the country of which the spouses share a

common nationality

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Which law Applies?

2) If there is not a common nationality, the law of the land in

which they are both normally resident

3) If the spouses are not normally resident in the same

country then the last country in which they were resident

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Which law Applies?

So, should a couple married in England apply for divorce

proceedings in Spain then the Spanish court shall apply the

law applicable in England.

However, the same couple could request that Spanish law be

applied if they are both normally resident in Spain.

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Which law Applies?

Spanish law is also applied in the case of a mixed nationality

marriage where both spouses are ordinarily resident in

Spain.

Given the number of people in this situation it is therefore

important to consider the application of Spanish divorce laws.

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Spanish Divorce Laws

In order to determine the Spanish legal rules that govern

matters such as the distribution of marital assets upon a

divorce it is first necessary to ascertain the 'system' of

economic relations marriage that the couple have agreed to.

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The two most important 'systems' of marriage are:

1) Sociedad de Gananciales

2) Separación de Bienes

Briefly, these can be defined as follows:

Spanish Divorce Laws

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Sociedad de Gananciales

Upon marriage a 'union of assets' is formed whereby all

future assets acquired during the course of the marriage

pertains to this 'union' and which upon dissolution of the

marriage should be shared between the spouses.

Spanish Divorce Laws

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Separación de Bienes

Both of the spouses retain all rights to assets acquired during

the marriage. Any assets that are bought with common funds

are owned in the proportion in which the spouses contributed

to the purchase of the asset.

Spanish Divorce Laws

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Separación de Bienes

Upon dissolution of the marriage it is necessary to determine ownership of assets.

Spanish Divorce Laws

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By Spanish Civil Code (Article 1315) the 'system' of marriage

that applies is determined:

1) By the couple themselves in a formal declaration before a

notary (capitulaciones matrimoniales)

Spanish Divorce Laws

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2) By the local prevailing law enacted by the regional

parliament

3) In the absence of local legislation, by the Spanish Civil

Code

Spanish Divorce Laws

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So, if a married couple did not make a formal declaration

stating a preference for one particular system (typically the

case), we then must analyze any regional laws that may

establish the 'system' of marriage to prevail in that region.

Spanish Divorce Laws

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Marriage Classification in Andalucia

There are no regional laws prescribing a particular system of

economic relations between married couples in Andalucía.

Therefore, in the absence of any other specific regional laws

we must have recourse to the Spanish Civil Code.

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Marriage Classification in Andalucia

The Spanish Civil Code establishes as standard the system

of 'sociedad de gananciales' which is therefore the

applicable system in Andalucia.

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Division of Marital Assets upon a Divorce in Andalucia

The procedure for the division of assets upon the ending of a

marriage that is classified as a 'sociedad de gananciales' is

governed by the Spanish Civil Code. For more information go

to: Division of Assets

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Child Custody in Andalucia

Typically, following a divorce any children will be placed in

the custody of one of the parents – almost always their

mother.

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Child Custody in Andalucia

However, another possibility is the shared custody of children

which may be defined as:

‘ the legal situation in which, following a separation or

divorce, both parents have legal custody of the children

equally, in terms of the conditions and rights that are

conferred in this regard.’

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Child Custody in Andalucia

While contemplated in the legislation reforming much of

family law in Spain (Law 15/2005) the concept of joint

custody has yet to really take off in Spain.

However, this may be changing with new laws being

introduced in a number of autonomous communities in Spain

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Child Custody in Andalucia

Andalucía is not one of the regions that has introduced

changes to the law and as a result shared custody of the

children of a marriage following a divorce should only occur

where:

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Child Custody in Andalucia

1) It is expressly agreed to by both parents, or

2) Absent an agreement between the parents, the judge

may award shared custody but only in exceptional

circumstances where the protection of the child requires it

and the District Attorney provides a positive report.

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Child Custody in Andalucia

However, this rule may now be in the process of changing as

a decision of the Spanish Supreme Court in July 2011 which

stated that 'shared custody‘ should not be applied only as an

'exceptional measure' as this was not an attribute conferred

by the Spanish Civil Code but rather should be considered as

'the most normal'.

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In the absence of regional laws determining such matters,

the Civil Code governs when considering issues related to

divorce and separation such as inheritances and common

liability for personal bankruptcy of one of the spouses.

Other Important Aspects of Divorce Law

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Other State laws also have a national reach and accordingly

may need to be taken into account in Andalucía depending

on the particular situation.

For example, visitation rights of grandparents and also

relevant to many is the family law applicable when a couple

are not married.

Other Important Aspects of Divorce Law

For details of the services available from local

English-speaking family law experts in Andalucía,

go to:

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Family Lawyers in Andalucía