Divorce is the last thing on a couple’s mind when registering a marriage. But if circumstances develop in such a way that divorce becomes inevitable, it is necessary to clearly understand the procedure and the rights of the parties.

Until 1981, during the reign of Franco and the colossal influence of the Catholic Church on all spheres of public and family life, divorces in Spain were generally prohibited. It was only in 1981 that appropriate changes were made to the Civil Code. A lot has changed since then. Until 2005, divorce had to be preceded by two years of separation (even in the case of divorce by mutual consent), and the procedure itself was not simple, it was long and exhausting.

In 2005, a new law regarding divorce in Spain was adopted, and the concept of “express divorce” appeared, which allows you to file an application for divorce three months after its conclusion and, most importantly, without specifying a specific reason.

According to statistics, immediately after the adoption of the law, the number of people wishing to get a divorce almost doubled. The same statistics show that more than 160 thousand marriages take place in Spain every year, of which about 60% break up. Moreover, the divorce rate is approximately the same both in the case of Spanish spouses and in the case of mixed marriages.

Divorce in Spain: consensual and contested

Until recently, regardless of how the marriage was registered (in the church or in the Civil Registry), divorce was formalized exclusively in court. Today it is possible as a notary marriage registration in Spain, and notarized divorce, but only in the case of mutual consent, the absence of property disputes and minor children.

Joint children and property of the spouses, as well as the lack of consent and various controversial issues can drag out the process for many years, which will require considerable effort, patience and expenses from the parties for lawyers.

In Spain, there are two options for divorce: by mutual consent and contested. In the first case, as we mentioned above, at least 3 months must pass from the date of marriage registration. If a case of domestic violence, physical or psychological, is registered, an application for divorce can be filed at any time, even before the minimum required 3-month period.

A contested divorce occurs when a petition is filed by one party without the consent of the other party or even without their prior notice. This is the most difficult and, from a bureaucratic point of view, the most exhausting option, involving lengthy court proceedings. Divorce by mutual consent (even if there are children), on the contrary, can take only a few weeks.

Minimum requirements for divorce in Spain

If we are talking about divorce by mutual consent, then in addition to the application itself, it is necessary to prepare a Convenio regulador – a special agreement regulating a number of issues: the amount of alimony for children and/or spouse (if necessary), the regime/schedule of joint custody of children (if any), the place of residence of spouses and children, other expenses and mutual obligations.

A marriage certificate must also be attached to the application. children’s birth certificates, identity cards of the spouses (divorce in Spain can be filed even if one of the spouses or both are not Spanish citizens: below we will discuss this point in more detail).

If the judge considers that the agreement signed by the spouses does not violate anyone’s rights (neither children, if any, nor both parties), then a positive decision on divorce will be made.

As for property, if there is a prenuptial agreement, it will be divided between the former spouses in accordance with the signed terms. In the absence of an agreement, the rules of specific autonomy will be applied: either Separación de Bienes (the principle of separate ownership) or Sociedad de Gananciales (the principle of joint ownership). In the Valencian Community and Catalonia, the principle of separate ownership prevails.

If there is no mutual agreement and, therefore, there is no signed agreement, then the court will resolve all controversial issues.

Divorce in Spain and child custody

Child custody in the event of a divorce in Spain is determined on a case-by-case basis. Most often, the court decides to appoint the mother as the primary guardian. However, in recent years, more and more court decisions (particularly in the Valencian Community, Aragon and Catalonia) have ordered joint custody of both parents, with the child(ren)’s time in the parents’ home being split 50/50.

There is also no single system in the issue of alimony: each case is considered individually, and alimony can be assigned as a percentage of income or a fixed amount. However, it should be remembered that in the case of joint custody, alimony is not assigned.

In any case, the court will primarily be guided by the interests of the child. Children over 12 years old must be asked which parent they would like to stay with. Separation of siblings is an extremely rare case, i.e. children are not separated and, therefore, strictly evaluate which parent has more resources and opportunities.

Joint real estate in Spain, in which the family lived before the divorce, will most likely be left to the parent who will be entrusted with sole custody until the child reaches adulthood. Ownership is not taken into account in this matter.

Who has the right to file for divorce in Spain?

Not only citizens of the country, but also residents can file for a divorce in Spain (regardless of the place of marriage).

An application for divorce can be filed in one of the following cases:

• If the applicant has Spanish citizenship and has been in the country for at least 6 months;
• If both spouses are residents of Spain;
• If the last country in which the spouses resided together was Spain and one of the spouses continues to reside in its territory;
• If the defendant (in the case of a contested divorce) is a citizen or resident of Spain;
• If one of the spouses (in case of divorce by mutual consent) lives in Spain;
• If both spouses are Spanish citizens but live outside of Spain.
• Thus, the right to divorce in Spain has nothing to do with the nationality of the spouses or the place of marriage. What is important is that at least one of the parties resides in Spain.

Foreign marriage certificates must be duly apostilled and/or legalized and translated into Spanish by a sworn translator Traductor jurado.

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Particular attention should be paid to issues of re-registration of residence or obtaining citizenship. Spouses of Spanish citizens who have received residence as family members of European citizens are required to apply for a modification of their residence permit within six months after the divorce has been finalized. After a divorce, a residence permit must be obtained on a general basis.

If there are no common minor children, then the following conditions will need to be met:

1. Live in an official marriage for at least 3 years;
2. Have lived in Spain for at least a year;
3. Have an employment contract, work as an entrepreneur, or have sufficient legal passive income.

In case of obtaining Spanish citizenship, it is recommended to delay the issue of divorce until a positive decision is received.

If one of the spouses is outside Spain, but agrees to a divorce, then the following will need to be done:

• First, issue a power of attorney in the name of the prosecutor (the attorney who will represent the interests of the absent spouse in the Spanish court);
• Secondly, sign the agreement (Convenio regulador) in the presence of a notary in the host country with subsequent apostille, or contact the Spanish consulate and sign the document in the presence of a consular notary.
• Thirdly, draw up a notarized application for divorce with the consent of the parties through an attorney and on the terms stated in the agreement (Convenio regulador will need to be filed with the application).