WE receive a number of enquiries concerning the legal situation with regards to divorce and separation in Spain and many of these questions come from foreigners and expatriates living in Spain with the most common being;
I am divorcing my partner, so, who has the right to use the family home?
It will all depend on what you agree. If you do not reach an agreement and there are children who would be considered minors, the use of the habitual residence is normally granted to whoever has custody of the minors. In cases of shared custody, the Judge will decide who is granted the use of the home, taking into account the best interests of the minor. In the event that there are no minors, the Judge may, in some cases, grant the use of the family home to the spouse who is considered in a situation of special vulnerability, even if the other spouse is the owner of the property.
If I divorce my partner in Spain, without having reached an agreement, will I automatically be awarded joint custody of my children?
No, joint custody is not automatically applied, even if it has been requested for in court. If there is no agreement between the parties, the Judge will decide, after analysing the specific circumstances of the case.
If the spouses are expatriates living in Spain and one returns to their country of origin, in which courts should the petition for divorce or separation be filed?
Regulation 2019/1111 of the European Union establishes that the courts where the divorce should be processed will be those of the state where there is a habitual residence. In other words, regardless of the nationality, if the last family address was in Spain, in principle the divorce should be started in Spain.
If the father or mother leaves home, is he/she obliged to pay support for the children?
Yes, as it is an obligation of the parent who does not have custody and a right of the children. But the obligation only arises when child support has been agreed between the parents or set by a court, therefore, it does not arise directly and the amount involved must be declared and fixed by a judge or between the two parties.
Can I request a modification of the divorce or separation agreement or court decision with regards to alimony to my former spouse, or financial support for my children if I have been affected by the crisis of the coronavirus COVID 19?
YES. Unfortunately, the Covid-19 crisis has affected the economy of many families, and some parents may not be able to pay the monthly amount to their children or former partners now. A special and summary procedure has been approved by RDL 16/2020 for those who have been affected by the coronavirus and such claims must be presented during the state of alarm and up to three months after its completion.
If you want legal advice on separations and divorce in Spain, contact us.
The information provided in this article is not intended to be legal advice but merely conveys general information related to legal issues.