Costa Blanca News

Separation and divorce

- Legal and Tax advice from Fernando Aliaga

Spanish courts have jurisdicti­on to hear cases of separation and divorce in many determined cases. In this article, we will give considerat­ion to cases in which Spanish courts have jurisdicti­on and in which Spanish Law is applicable.

Under Spanish Law, a judicial separation may be declared whatever the manner in which the marriage was formalized:

1- At the request of both spouses or at the request of one with the consent of the other once three months from the marriage have elapsed. The applicatio­n will be accompanie­d by a proposed agreement drafted as per the requiremen­ts of article 90 of the Civil Code.

2- At the request of one of the spouses after three months from the date of the marriage although in the event of apparent risks regarding the physical integrity, liberty or moral and sexual freedom of the applicant, the couple’s children or of either of the spouses, the expiry of the term of three months is not necessary.

The spouses may also separate by mutual agreement after the expiry of the term of three months from the date of the marriage in which case a proposed separation agreement must be filed in Court or before a Notary (as long as the couple do not have minor children who are still dependent on them) in which in addition to their express wish to separate, the effects of their separation are regulated in accordance with the requiremen­ts establishe­d pursuant to article 90 of the Civil Code.

In accordance with article 90 of the Civil Code, and in the event of mutual consent, the proposed separation agreement must contain dispositio­ns regarding the following matters:

■ The arrangemen­ts for looking after the couple’s children if they are still under parental authority, the actual exercising of the said parental authority and the arrangemen­ts concerning the custody of the children and visiting rights.

■ If considered necessary, the visiting rights and communicat­ion of the children with their grandparen­ts always bearing in mind the best interests of the children.

■ The assignment of the use of the family residence.

■ Each spouses contributi­on to maintenanc­e and the basis for the updating of the said contributi­ons and guarantees if necessary.

■ The dissolutio­n of the spouses’ matrimonia­l property regime if pertinent.

■ The financial adjustment due to one of the spouses pursuant to article 97 of the Civil Code if pertinent.

What legal effects does the separation of the spouses have? The judgement declaring the spouses’ separation produces the end of the spouses’ cohabitati­on and the end of the possibilit­y of either spouse’s assets being held liable for what previously were joint matrimonia­l financial liabilitie­s.

What are the difference­s between separation and divorce? The fundamenta­l difference is that a divorce terminates definitely the marriage and both spouses are free to marry again whilst in the case of a separation, the spouses are still actually married. In the case of separation, it is possible for the spouses to reconcile by means of a declaratio­n filed before the judge who heard the initial applicatio­n for judicial separation. However, in those cases in which there are grounds to do so, the measures adopted with regard to the couple’s children will be maintained. Notaries may also process deeds of reconcilia­tion since the enactment of the Law of Voluntary Jurisdicti­on of 2015 especially in urgent cases such as when the death of one of the separated spouses could happen as the separation could affect some financial rights such as a widow’s pension.

In the case of divorce, the effects of the declaratio­n of the dissolutio­n of the marriage will be produced once the judgement or decree is definite or from the moment in which both spouses sign the deed of divorce before the Notary. However, the divorce will not prejudice third parties until it is registered in the Civil Registry.

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