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Everything you need to know about getting divorced in Spain

How does getting divorced in Spain compare to other countries? How are the assets divided up? Do you have to prove grounds for divorce and how long does the process take?

Everything you need to know about getting divorced in Spain
In Austria, divorce can also be achieved after a partner successfully blames the other. Photo: Free-Photos / Pixabay

2021 marks 40 years since divorce became legal in Spain.

Here we look at the divorce process, the legal implications and whether it’s easier for foreigners in Spain to file for divorce back in their home countries. 

Who can get divorced in Spain?

You can get divorced in Spain whether you got married here or not. The only requirements are:

  • One party is a Spanish national or a Spanish resident
  • You must have been married for at least three months
  • You or your ex-partner must have lived in Spain for more than six months before filing for divorce

Do I have to get divorced in Spain if I live here or do I have a choice?

If you live in Spain, it doesn’t necessarily mean that you have to file for divorce here, you may be able to get divorced in your home country or the country that you got married in, depending on your circumstances.

For example, you have the right to divorce in England or Wales, even if you live in Spain if:

  • You have been married for more than one year
  • You have appropriate grounds for divorce
  • You or your ex-spouse or both of you have a legal connection with England or Wales

In the United States, laws vary between states, but usually one of the partners should be resident in the US in order for the divorce to be granted there.

Find out about the divorce laws in your home country to determine where it will be more beneficial for you to file for divorce, if you have a choice.

Do you have to prove grounds for divorce in Spain?

In Spain, divorce is no-fault, meaning that you don’t have to prove your partner has done something wrong in order to have grounds to divorce.

This is unlike the laws in the UK or the US, where you would usually have to cite a reason for divorce. In England and Wales, for example, this could typically be adultery, unreasonable behaviour, two years’ separation with consent, five years’ separation or desertion. In the US, this also includes things such as impotence at the time of marriage, force or fraud obtaining the marriage, and bigamy.

How long does it take to get divorced in Spain compared to other countries?

Divorces can be long and drawn out processes or they can be relatively quick, depending on your individual circumstances.

According to Klev&Vera International Law Firm, the minimum length of mutual consent divorce proceedings in Spain is four months, while Balcells Group legal firm says that it takes between four and six months.

However, if there are children involved or the divorce is contested, the proceedings could take considerably longer – up a year or more.

In comparison, in the UK, divorces typically take six to nine months to complete.  

Note that in Spain, if your divorce is agreed upon by both parties and there are no children involved, proceedings can be quicker, as they can be done through a notary instead.

What you need to know about getting divorced in Spain. Photo: LEANDRO AGUILAR / Pixabay

How are assets divided during a divorce in Spain?

There are two different categories you could fall under when it comes to the division of assets during a divorce in Spain. These are gananciales or separación de bienes. Under the first one, everything that you owned coming into the marriage is shared and each half of the couple owns 50 percent. Under the second one, what you brought into the marriage and what you earned remains yours. So for example, if one half of the couple paid for 75 percent of the house and the other only paid 25 percent, then you will likely get that same percentage back after the divorce, unless agreed otherwise.

If you got married in Spain, you will have been married under the law of comunidad de bienes or separación de bienes, depending on which region you got married in. Most regions fall under the gananciales matrimonial regime, where everything is shared, but if you got married in Catalonia, the Balearic Islands, the Basque Country, Aragón or Navarra, you will fall under the separación de bienes regime.

According to Advocate Abroad “Spanish law is applied where a foreign national is resident in Spain and married to a Spanish national. Also, a married couple who are foreign nationals and who are habitually resident in Spain, may also request that a Spanish court applies Spanish law to their divorce application”.

In England and Wales for example, the equivalent of comunidad de bienes doesn’t exist and the starting point for dividing assets is 50/50. In the United States, the law depends on which state you file for divorce in, but generally, when you get married, your assets become joint property.

Each case in Spain is different though and in the end, the courts can decide how to divide up assets and income. They will generally try to find a solution that is fair to both parties.

The other main difference between Spain and the law in England and Wales is that in England there are strict rules to stop a spouse lying about what financial assets they have and committing perjury, whereas, in Spain, there’s no perjury for spouses in a divorce process, according to Domenech Abogados. This means that in Spain, it might be easier for one spouse to hide some of their finances from the other one. 

What about custody agreements?

More often than not, divorces that involve children are the most contested ones and the ones that are the most difficult.

In Spain, there are two different types of custody agreements – sole custody and joint custody. According to Crespo Family Lawyers, “In Spain, joint custody must be applied as the preferred option (except when it does not benefit the minor). The precedent case law, since 2011, establishes that equal contact with both parents is, in principle, healthier for the children, allowing both parents to fulfill their roles as parents and as educators”.

In reality in Spain, the children end up living with the mother most of the time, even though the father has the same legal right.

The parent that is not living with the children has the obligation to pay alimony to the other parent to help with financial costs in bringing them up.

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SPANISH CITIZENSHIP

How to apply for Spanish citizenship for a baby born in Spain to foreign parents

Here’s everything foreign parents need to know about the process to apply for Spanish citizenship for their child born in Spain, from the requirements to the documents they'll need.

How to apply for Spanish citizenship for a baby born in Spain to foreign parents

One of the first questions foreign parents ask themselves when they’re about to have a baby in Spain is what nationality the child will have. 

Foreign parents from most countries who have legal Spanish residency and have a baby in Spain will not be able to get Spanish citizenship for their new-born right away.

By law, they will first inherit the citizenship of their parents unless they are from Argentina, Cape Verde, Costa Rica, Cuba, Guinea Bissau, Panama, Paraguay, Peru, Portugal, San Tome and Principe, Uruguay or are stateless, in which case their child can get Spanish citizenship straight after birth. You can read about it in more detail here

Parents from all other countries may only apply for Spanish citizenship for their child after he or she has continuously lived in Spain for a period of one year, usually from the date that their birth in Spain was registered.

This is covered in Spain’s Organic Law 4/2000, of January 11th, on the Rights and Freedoms of Foreigners in Spain and their Social Integration (articles 16 to 19 and 31) and the Regulation of Organic Law 4/2000, approved by Royal Decree 557/2011, of April 20th (article 186).

Keep in mind that this right to Spanish nationality after one year of residency continues throughout their life if they were born in Spain, so if you would rather wait for your son or daughter to decide later on in life if they want to be Spanish, they hold on to that right.

If your intention is for your child born in Spain to acquire Spanish citizenship as soon as possible, here’s what you have to do.

The first step is to register your baby’s birth at the Civil Registry, which can be done at the hospital or a few days later at the Registry Office.

READ ALSO: How to register your new baby in Spain and apply for a passport

Next, you will register your baby’s birth with the embassy or government of your home country and apply for a passport for them.

Most countries will grant this automatically for babies born abroad, although you will need to find out the specific process for your country. 

READ ALSO: Does having a baby in Spain mean I can become Spanish?

Apply for residency first

Once you have all the paperwork pertaining to your baby’s nationality, you will need to apply for a residency card for them, in a similar process to the one that you applied for when you moved to Spain.

This is referred to as the Autorización de Residencia para menor nacido en España (Residency Authorisation for a minor who was born in Spain).

You will need to book a prior appointment at the police station to apply for a foreign identity card such as a TIE.

According to the Spanish government website, the prerequisites for this are that:

  • The baby must not be an EU citizen or family member of an EU citizen
  • They must have been born in Spain
  • At least one of the parents must also have residency

For this, you will need:

  • their birth certificate
  • documents showing that the birth is registered in your home country such as a passport
  • your residency documents
  • padrón certificate from your town hall
  • possibly extras such as your marriage certificate and your passports
  • Anything not in Spanish or a co-official language in Spain such as Catalan must be fully translated by a sworn translator.

You will also need to fill out the form EX–01 for temporary residence or EX-11 for long-term residency.  

If you are a European citizen, you can apply for a special permit for children born in Spain to Spanish residents, which can also be applied for at the police station by taking your child’s birth certificate, their nationality documents, and your green residency card. 

The processing time should take around one month, after which you must take your child along with you when you go to collect their residency card.  

How to apply for Spanish citizenship for your baby born in Spain after one year 

After one year of legal residence in Spain, you can start the application of applying for Spanish citizenship by getting a Judicial Order from the Judge of the Civil Registry so that you can make this decision for a minor.  

In order to complete the process you will need: 

  • Your child’s birth certificate
  • Their residency card
  • Their passport from your home country
  • Residency certificates of the parents
  • Passports and birth certificates of the parents
  • Padrón certificate from your town hall
  • Pay a fee of €102

Extras that may be requested are your marriage certificate if you have one. 

Your child will not have to take the language or citizenship exam that adult applicants are required to as they are under 18 years old.  

Keep in mind, foreigners who are in Spain on a student visa will not be able to apply for Spanish citizenship for their baby born here.

One of the parents must first modify their residence permit before they can move forward.

Be aware that not all countries recognise dual citizenship, including Spain (except with only a handful of countries), so your child may be forced to give up the nationality they acquired from you when they were born.

This is not always the case, but you may want to contact a lawyer about the legal ramifications of this if you decide to move forward with Spanish citizenship for your child. 

READ ALSO: Do you really have to give up your nationality to become Spanish?

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