Divorce & Property in Spain: Your Questions Answered
My husband and I would like to buy a property in Spain. What are the main differences with UK proceedings?
If you and your husband got married in the UK, you must inform the Spanish Notary that your marriage is subject to the English Law when you attend the signing. Once you acquire ownership of the property, the Notary will apply this ownership in equal proportions by default, that is to say, 50% to each spouse.
This is the system that rules “by default”. This means that if you wish the ownership to reflect the amount that you have actually paid, you must inform the Notary accordingly. As an example, if one of the spouses only paid 25% of the value of the asset, both spouses, by mutual agreement may request the Notary to specify this proportion in the property, so that the spouse that has invested more money shall appear as the owner of 75% of the property deeds, instead of the 50%, which would have appeared if the Notary is not duly informed.
Certain consequences would arise if one of the spouses decides to pay the 100% and be the sole owner, not only when selling the property, because it would be possible to sell or charge the property (which are situations where only one signature is needed), but it could also have certain consequences if the marriage ends in divorce.
Even though we never want to think about divorce, this possibility does in fact exist and in this unfortunate situation, if only one of the spouses has the 100% ownership, he/she could to act unrestrictedly according to his or her will. However, if the property is the family home and in order to protect the children, the Spanish system requires the signature of both spouses, independently of whether the property is registered under only one of the spouses or both.
My husband and I have lived in Spain for years and now we are divorcing. Shall we divorce following the Spanish Law? If so, is it very different?
If you and your husband are British and based in Spain on a permanent basis, the applicable law for a divorce in Spain, would be the English Law, and this is regardless of the country where you were married. The only difference between divorcing in Spain or in UK would be the proceedings, as when a British couple get divorced in Spain, the trial will be processed following Spanish Procedural Rules, but English law will be applicable, and therefore, the consequences will be the same as if you and your husband got divorced in England.
The most relevant part of the proceeding will be to file a Certificate of British Marital Law signed by an expert in British Law. This is due to the fact that there is a need to apply English Law. Coordinating actions between a British lawyer and a Spanish lawyer is a key aspect in this part of the process as mistakes can arise where Spanish legislation is applied instead of the British one. Undoubtedly, this can have negative consequences for the British spouses seeking divorce. In these cases it is very important to count with specialized family lawyers both in the UK and in Spain who are entirely aware of the detailed aspects of the British Law, for them to be fully understood by the Spanish Judge.
According to Spanish Procedural rules, a divorce may be of mutual consent or a contentious divorce. However, in both cases the Divorce Petition must be signed by both the lawyer and the court agent. In matters relating to children, the use of a family property or financial support shall be decided in the divorce procedure whereas issues relating to assets shall be dealt with in an independent procedure aimed at dividing the marital property.
