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Spanish divorce dealing with the division of property
One of the most contentious issues during the course of a divorce is the division of property. Even if the actual divorce was amicable, problems often arise when dealing with financial issues and when deciding how to divide fixed assets such as property. The process can be even more complicated in cross-border divorce if the parties do not live in the same country.
We will explore the Spanish rules of divorce and the regulations in place when attempting to divide property.
Read on to find out more:
- Rules of divorce in Spain
- Civil law regulations: The Matrimonial Property Regime
- How to transfer property following a divorce
- The complications that may arise
- How Giambrone & Partners can help
- Common Queries
What are the rules of divorce in Spain?
The divorce process is uncomplicated in Spain, despite divorce only being legalised in 1981. In 2005, the express divorce bill made it quicker and cheaper to get a divorce.
Providing that you and your partner can reach an agreement regarding children and assets, getting divorced in Spain is relatively simple. There are no grounds for divorce in Spain, couples do not have to cite a reason for their separation, divorce is undertaken on a no-fault basis. All that is required is a signed petition from you or your partner, provided the marriage lasted for three months. You can divorce in Spain if one party is a Spanish citizen or Spain is your permanent domicile.
You will need your marriage certificate, a certificate of empadronamiento (census) and a convenio regulador (regulatory agreement).
Civil law regulations: The Matrimonial Property Regime
Although applying for divorce is a straightforward process, there are certain economic processes under Spanish law that the couple must consider before they even get married. If you have a prenuptial agreement or marriage contract, the jurisdiction under which the financial arrangements and the division of property can be designated. If no such document is prepared, the property or properties in Spain will be dealt with under the laws in Spain.
There are three aspects to the matrimonial property regime
Economic community of property regime
This is the default option that applies in most regions in the absence of a pre-nuptial agreement or marriage contract. The couple will have joint ownership of most properties, such as the marital home, but property acquired prior to the marriage belonging to just one spouse will belong entirely to the initial owner.
This is known as the régimen económico de gananciales.
Separation of property regime
This regime entitles each spouse to retain ownership of their own properties regardless of when they were acquired, before or after the marriage.
This is known as the régimen de separación de bienes.
Participation regime
This is a combination of the community and the separation regimes, allowing each spouse to have the right to participate in the profits earned by their partner during the marriage. However, they will each retain full ownership of any property they gained before or during the marriage. If acquired together, it will belong to both parties.
This regime is the least popular, and is known as the Régimen de participación.
If you would like to find out more about the legal implication of these regimes, please get in touch with us today.
How to transfer property following a divorce
How you transfer your property following a divorce will depend on the regime your marriage followed. For instance, if the community regime applies, each spouse gets 50% ownership. If the couple cannot agree on who receives the property, legal action may be necessary.
According to the Civil Code, an inventory containing all assets must be drafted, including the common assets and pending debts attached to the property. The matrimonial home is regarded as a 'special' asset that is dealt with separately. A jointly owned property will be sold and the money will be shared between the spouses in the absence of children of the marriage. Or one spouse will keep the property and buy out the other spouse.
If children are involved, the custodial parent will retain the right to live in matrimonial home until the children come of age and leave home.
Read more about common property disputes here.
What are the complications that can arise?
There are two types of divorce in Spain; contested and uncontested. Uncontested divorce is usually a smooth process, often with both spouses agreeing to split their assets in a way that suits them both. A contested divorce means that only one spouse has filled out the divorce petition. The divorce is likely to take longer as the couple may not agree on certain aspects.
If the couple struggles to reach an agreement regarding their property if they both want to live there, the issue may go to court if a resolution cannot be reached in mediation. In this case you will need to instruct an Abogado (Spanish lawyer).
How Giambrone and Partners can help
Our expert international divorce lawyers at Giambrone & Partners have years of experience in dealing with divorce in Spain and the division of assets. If you are a British citizen involved in a property dispute arising from your divorce Giambrone & Partners will be able to advise.
To find out more about how we can help you finalise your divorce, get in touch with us today.
Common Queries
What is "separación de bienes"?
Seperación de bienes translate to "separation of property". This can be applied before a marriage and states that each spouse owns their own property, no matter whether it was purchased, before or during the marriage.
What are the two types of divorces in Spain?
Uncontested and contested. An uncontested divorce means that both parties came to a mutual agreement, whereas in a contested divorce, only one signed the petition for divorce
How is the matrimonial home treated in a divorce?
The matrimonial home is a “special” asset and is dealt with concurrently with private property and other matrimonial assets. It is usually split 50/50 between the spouses, unless children are involved and one spouse has gained custody of the child(ren).
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