Individuals can divorce or legally separate in Spain if either party is a Spanish national or is Spanish resident at the time of filing the petition.
A petition for divorce or separation can be filed with the courts after only 3 months of marriage or sooner if there are extenuating circumstances. There is no requirement to have been separated for any period of time prior to filing the petition.
Uncontested or Contested divorce
Uncontested divorces are where both parties, by mutual agreement, agree to divorce or to separate and the procedure is relatively quick and simple.
Contested divorces arise when the petition is filed by only one of the parties to the marriage without the consent of the other party. The court procedure is then long and complex and may entail the need to put in place provisional measures (medidas provisionales) in terms of property, child custody and support or maintenance payments.
Procedure
The procedure for divorce or legal separation, initiated by both spouses, acting in common agreement, or by one of the spouses with the other’s consent is always the preferred route.
The parties merely have to present the claim and an agreement (convenio regulador) dealing with issues such as:-
- Custody of children
- Visitation rights
- Maintenance or support payments for children
- Maintenance or support payments from one spouse to the other
- Division of assets (incl. matrimonial home)
In the case of contested divorces then it shall be left to the courts to deal with matters that would normally have been dealt with under the agreement (convenio regulador). The judge will determine what he considers appropriate according to the circumstances of the case and his decision will be final and cannot be appealed.
Effects of divorce
One a divorce has been granted then both parties can legally remarry. Divorce terminates any inheritance rights or claims to any widow’s pension or any other obligations that go hand in hand with marriage. Divorced parents still retain their duties to their children.
