Blog

A Spanish Lawyer’s Guide to Getting Divorced in Spain for Expats

10/07/2015 Rafael Guerrero

It’s not a happy topic wherever you are, but getting a divorce in a foreign country can seem more daunting still. Andalucía Lawyers have put together this guide to getting divorced in Spain for expats to help you better understand the process and the options available to you.

I’m not Spanish, can I still get divorced in Spain?

As an expat you can obtain a divorce in Spain if you and/or your spouse is a Spanish resident, or if your other half is a Spanish national.

Do I have to wait a certain time after getting married to be able to apply for a divorce?

You may divorce by mutual agreement if you have been married for at least three months. However, in cases of domestic violence (whether physical or psychological) the victim can apply for divorce before this three month period is up. It’s not necessary to have been legally separated before filing for a divorce.

Am I legally obligated to reveal the motive of our separation?

No, divorce law in Spain is no-fault. This means that it is not necessary to cite a reason in order to obtain a divorce.

I want a divorce but my partner refuses to give their consent, can I still get a divorce in Spain?

Yes, you can. In Spain it is not necessary for both parties to apply for a divorce, although if your partner doesn’t want the divorce it will be a longer and more complicated process. Read more about this below.

What is the process for getting divorced in Spain?

There are two main types of divorce in Spain:

1) Uncontested divorce

This is when both partners mutually agree to the divorce. This is the fastest and most straightforward way of obtaining a divorce in Spain; if no unforeseen issues arise the process can take as little as a few weeks.

Choosing a Lawyer

You will need a Spanish lawyer and a legal representative (procurador) to act on your behalf. If both you and your partner agree on the divorce and all its terms, there should be no problem in you both using the same Spanish lawyer. Your solicitor will be able to recommend a procurador. Contact us at Andalucía Lawyers to enquire about our services.

Required Paperwork

Along with your petition for divorce, you must also present the judge with the proposal of governing convention (convenio regulador), in which you state what you have agreed on together regarding the following points:

The amount, if any, of compensation allowance or alimony to be paid by one spouse to the other.
In the case of shared children, the cohabitation and custody arrangements for these, including visitation rights of the non-custodial parent.
The sum that has to be paid for the children’s alimony.
Use of the family home.
The manner, if any, in which the spouses continue to contribute to family expenses.

The marriage certificate and the birth certificates of any children.

The power to approve the governing convention and grant a divorce rests with the judge.

2) Contested divorce

This is when only one partner files for a divorce without the consent of the other. The court procedure in these cases is longer and more complex, taking anything from a few months to over a year.

Choosing a Lawyer

You will need a Spanish lawyer and a legal representative (procurador) to act on your behalf. If you and your partner don’t agree on any part of the divorce, under no circumstances should you use the same lawyer. It is important to employ a trustworthy and independent Spanish solicitor who will negotiate in favour of your interests. Your solicitor will also be able to recommend a procurador. Contact us at Andalucía Lawyers to enquire about our services.

Required Paperwork

Once again, the petition for divorce and the proposal of governing convention must be presented to the judge to apply for a divorce order, along with the marriage certificate and the birth certificates of any children. If you and your spouse cannot agree on the contents of the governing convention your respective lawyers will have to negotiate between themselves, perhaps also requiring third party evidence. In the meantime, temporary measures may be put in place concerning issues covered in the governing convention, such a child custody and support.

Appeals

The judge’s sentence concerning the divorce order will be filed to the Spanish Civil Registry, after which it can be appealed against. One or both spouses can apply for amendments to the sentence which will be decided by a subsequent judicial dictum.

Custody of Children

Custody is awarded to the mother in most cases, especially with young children, the exception being if it is proven that this would not be in the best interests of the child/ren. Lately the Spanish courts have increasingly come to support joint custody when both partners wish to share visitation rights.

Alimony

Spanish courts generally only award alimony in situations where one of the spouses will suffer a severe loss of income from the divorce, for example if they have given up a career to care for the children with the other spouse taking on the role of sole or main bread-winner. The amount of alimony awarded varies from case to case, but generally falls between 15 and 40 percent of the higher income.

The Division of Assets

Spanish law regarding the division of assets in a divorce is determined by the local law of the couple’s place of residence. In Catalonia, Aragon, Navarre, Balearic Islands and the Basque Country, for example, Separación de Bienes generally applies. This means that each partner keeps anything they owned before the marriage, and any joint purchases during the marriage are divided according to each individual’s investment in buying them. Court rulings have also attributed a financial value to non-monetary contributions, such as taking care of the home and raising children.

In the other Spanish regions, including Andalusia, Sociedad de Gananciales generally applies. This means that all assets acquired during the marriage are considered to belong to both partners equally, unless they are deemed ‘private goods’. Dual ownership would apply to rental income, businesses and goods bought with shared accounts or investments.

Remarrying Following a Divorce

You are legally permitted to remarry once a divorce is granted. Upon doing so, you will immediately lose any marital inheritance rights and widow/er’s pension rights. However, any obligations in regard to children from your previous marriage will remain unchanged.

Contact Us

Are you an expat getting divorced in Spain or thinking about it? Whether you want Andalucía Lawyers to take care of your divorce for you, or just discuss your options with us, you may contact us in complete confidence to arrange a consultation. We have offices in Granada and Sotogrande and can also provide consultations over the phone or via the Internet.

What is a Power of Attorney?

How Do I Know if I’m a Spanish Resident or Non-resident for Tax Purposes?

Important Changes to Spanish Inheritance for Expats

09/11/2015 Rafael Guerrero

Are you an expat living in Spain? Then this applies to you!

Changes to Inheritance Law in Spain

On 17 August 2015 a new European Regulation came into effect, radically changing Spanish inheritance for expats. Previously, the rule of thumb for Spanish inheritance law was that the deceased’s estate would be governed by the law of the country of their nationality. As a result, if an English person living in Spain passed away, their estate would be subject to English inheritance law, irrelevant of the fact that their place of residence was in Spain. However, with the new European Certificate of Succession, this has all changed.

What are the consequences of this change for Spanish inheritance for expats?

As a consequence of this new legislation, the law applicable to the testator’s estate is no longer that of their nationality but rather that of their place of habitual residence at the time of death. This brings with it some very significant consequences for expats living in Spain. Whereas before an English person residing in Spain would have had English succession law applied to their estate following their death, now Spanish inheritance law will apply. According to Spanish inheritance law, the estate would be obligatorily divided into three parts, quite possibly contravening any testamentary provisions in the deceased’s will. Obviously, this would come as a terrible shock to inheritors, and could raise a whole myriad of financial problems.

Is there any way around it?

Thankfully, another change has also come into effect with the European Certificate of Succession – you are now able to choose which national inheritance law you wish to be applied to your estate. If you are an expat living in Spain and want the inheritance law of your country of nationality to apply to your estate upon your death, you must make an explicit declaration of this in your will. If you hold multiple nationalities, you can state the one that you wish to be applied to your estate in the will.

Act Now!

If you are an expat living in Spain it is extremely important to amend your will now to ensure that your estate is divided according to your wishes and avoid potentially big problems for your heirs.

Contact Us

We can help you to write a new will or amend an existing one to best reflect your wishes for your estate in light of the European Certificate of Succession. This can be done in person in one of our offices in Granada or Sotogrande, or electronically with a power of attorney.

Spain’s New Inheritance Tax Law for Non-Residents of Spain

The EU Court Rules that Non-resident Inheritance Tax in Spain Is Illegal

Spanish Inheritance

Spanish Inheritance Tax

Spanish Wills

Buying Property in Spain from a Tax Haven Country

04/27/2015 Rafael Guerrero

Andalucía Lawyers has put together this quick guide to buying a property in Spain from a tax haven country.

Do you live in a tax haven* but would like to buy property in Spain? No doubt you have questions not only about the process, but also about the best possible way to approach it for your particular situation. We are here to help!

*Click here to see which countries Spain classes as tax havens.

Do I need permission from the Spanish government to invest in Spanish property?

In most cases, foreigners are free to buy property in Spain without obtaining approval from the Spanish government beforehand. However, there are a few exceptions. If you are a resident of a tax haven and looking to purchase property in Spain then you fall into the exceptions category. Spanish law states that if the buyer is resident in a tax haven then they are required to file a DP-2 form – a prior declaration of real estate property investment originating in a tax haven – with the Ministry of Economy and Finance.

The DP-2 Form for Purchasing Property in Spain from a Tax Haven

Within the form you must provide your own personal details such as name and address along with the details of the property you intend to purchase. If you wish, our team at Andalucía Lawyers can take care of this step for you, along with all other purchase paperwork, through a power of attorney.

How long is the approval valid for?

Generally, there should be no problem in your request gaining approval. However, once it is approved it will only be valid for six months. If you don’t buy the property within this time frame then you will have to apply again. For this reason, it is essential you seek reliable legal advice from a lawyer with experience in these matters so you are fully aware of the process and information required of you before you begin and avoid wasting time and money. Contact us at Andalucía Lawyers to arrange a consultation.

Can I buy the property as a company or trust?

If you want to buy Spanish property as a resident of a tax haven, you might want to consider doing it as a company or trust. This would provide you with some tax benefits as well as making the sale of the property easier if you were to sell it in the future. Read our article Buying Property in Spain through a Family Trust for more information.

What will I need to purchase a property in Spain?

As a foreign investor, you will need to register for a NIE number or Foreigner’s Identification Number. If you are purchasing property through a company then you will need to register for a Spanish business tax number or CIF. You will also need to open a Spanish bank account for the transaction.

What personal and financial information will I have to provide?

Lawyers and notaries are obliged by the current Spanish Money Laundering Regulations to request full disclosure of the personal details of the owner of the capital to be invested in the property purchase. The property purchase must be carried out either by verifiable wire transfers or bank cheques, to be incorporated by the notary into the purchase deed according to the law.

What taxes will I need to pay?

There are various taxes applicable to property sales in Spain, some of these are fixed as ascertaining to one party, while others are negotiable between the vendor and the purchaser as to who pays them. A good lawyer can manage the purchase on your behalf to ensure that you only pay the amount of tax strictly necessary, without any unexpected added extras. Read our article Costs Involved in Purchasing Property in Spain for more information.

Do I have to go to Spain to purchase the property?

No, this isn’t necessary. By granting us a power of attorney we can take care of all the paperwork on your behalf.

Contact Us

We hope this quick guide to buying a property in Spain from a tax haven country proves useful to you. If you have any specific questions about your own situation, do not hesitate to contact us at Andalucía Lawyers to arrange a consultation with a member of our team. We provide consultations to clients all over the world via phone or email, as well as in-person consultations in our offices in Granada and Marbella.

More Information on Buying Property in Spain

Visit Spanish Property Insight for up-to-date market intelligence, data, news and analysis of the Spanish property market.