Getting a divorce in Spain needn’t be difficult so long as both parties can agree on the all-important matters of child custody and the division of assets. The conditions under which a non-Spanish national can obtain a divorce in Spain are that either they or their spouse is resident in Spain; their spouse is a Spanish national; or the children live in Spain.
Spouses may divorce by mutual agreement when they have been married for at least three full months. It is not necessary for the couple to have been legally separated for any period of time before filing for divorce. In certain cases a party may petition for a divorce without waiting for the three-month period.
Where younger children are concerned, custody is usually awarded to the mother. However, joint custody is now becoming a more common outcome of divorce proceedings in Spain. Spanish courts generally award alimony only where one of the spouses is clearly disadvantaged economically as a result of the divorce.
Types of divorce in Spain
Uncontested divorce: The application for divorce by mutual consent may be made before the “Letrado de la Administración de Justice” (judicial secretary), notary public or the Court of First Instance. As part of the application the parties must present a contractual agreement addressing the following:
Cohabitation and custody arrangements for any children, including visitation rights of the non-custodial parent.
Any compensation allowance or alimony, if any, to be paid by one spouse to other.
Use of the family dwelling.
The manner, if any, in which the spouses continue to contribute to family expenses.
An uncontested divorce can be concluded quite quickly. However, in cases where one of the spouses does not want to divorce or if both want to but they do not agree on the outcome, the divorce will be contentious.
Contested divorce: In this case the divorce petition is filed by only one of the spouses. It may require negotiation between lawyers and call on third party evidence. A contested divorce can take anywhere from a few months to more than a year to complete. Both parties will have to attend a Court hearing.
Whichever way the spouses choose to seek a divorce (judicial or notary), they must be assisted by a practicing lawyer. And, in the case of legal proceedings, they will have to be represented by an attorney.
In addition to divorce, Spanish law also acknowledges a separation procedure. Under a separation judgement the marriage is not definitively dissolved. This means that the spouses can live together again in a marriage at any time. In a separation, all subsequent matters, such as childcare and use of the family dwelling must be presented. If no such agreement is presented, the court will independently determine the measures it deems appropriate.
Please note these are only general guidelines and not definitive statements of the law. All questions about the law’s applications to individual cases should be directed to a Spanish lawyer.