Article supplied by Welex Lawyers & Accountants
The first issue to be addressed when it comes to family law in Spain is one related to jurisdiction. The Spanish state requires a link with those wanting a divorce to be aware of the said divorce. In other words, if your last address or place of last residence is in Spain, you can divorce before the courts in Spain.
An amendment to Spanish divorce law was introduced to the legal system in 2015, updating the procedures of voluntary jurisdiction and largely repealing the part of the civil prosecution law of 1881 that still remained in force after the publication of the civil prosecution law of 2000. This includes not only the jurisdictional method (going to court) but also the possibility of doing it through filing voluntary jurisdiction before a lawyer of the administration of justice as well as the possibility of doing so before a notary in Spain. However, in practice, it is advisable to take the first option – that is, to appear before a court in Spain. This is not only, in the long run, more cost-effective, but it also provides a higher guarantee of the resolution of the divorce.
Thus, in the case of a resident in Spain, even one of another nationality, who wants to divorce using this method, he or she would be required to hire the services of a lawyer and court representative, because it is an indispensable requirement in accordance with the law in Spain.
Together with the claim, the plaintiff ’s representation must be accredited, and the lawyers would need the translated and apostilled marriage certificate and any children’s birth certificates.
The economic capacity of both parents would need to be deter-mined in cases where one wanted to claim an alimony for the minors or a compensatory pension under Article 95 of the Spanish Civil Code, if the dissolution of the marriage resulted in an imbalance for one of the spouses. Likewise, a proposal for a divorce agreement and any other document to justify the claims of the parties must be included.
Also, take into account the Spanish legislative modification of 2015 that allows – in the case of a divorce in Spain by mutual agreement – for the inclusion of the formation of inventory and liquidation of joint assets in the divorce procedure. In this way, all can be processed by just one procedure, which would otherwise involve three legal proceedings in Spain.
Together with the filing of the claim in Spain, it is important to apply for an adoption of measures that involve regulating the custody of the minors, payment of alimony, and use of a house in Spain, among others, for the duration of the procedure until the judgment. Lastly, it is important to mention that, in this type of procedure, both spouses can use the services of the same lawyer and court representative if they agree to a procedure of mutual agreement.
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