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How does shared custody after divorce work in Spain?

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How does shared custody after divorce work in Spain?
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Shared custody of children following a divorce depends on a few factors in Spain, including how amicable the separation is, each parent's relationship with the child, their family support network, finances, and the ruling of a judge, among many other things.


In 2022 there were 81,302 divorces in Spain, according to the latest data on Separations and Divorces (ENSD) from the National Statistics Institute (INE). This was a fall of 6.4 percent overall year-on-year, though experts seem to think there was a post-pandemic uptick in divorce rates in 2021.

Spain for many years occupied the top spot among European countries with the highest divorce rate, but has since fallen to 11th place, registering 1.8 divorces carried out per 1,000 inhabitants in 2021, far behind leaders Lithuania (2.8), Latvia (2.5) and Sweden (2.3). However, divorces were up by 13 percent again in 2022 with a total of 90,582 divorcios

Regarding divorces of couples with children, a striking fact is the increase in shared custody in Spain in recent years. In 2022 they accounted for 45.5 percent of the total separations - the highest figure ever recorded - compared to just 17.9 percent in 2013.

Family and divorce experts alike seem to suggest this demonstrates a growing social awareness of the importance and benefits of shared responsibilities in all areas of parenting, particularly the role of fathers — whether married or divorced.

Yet, the majority of custody decisions post-divorce (50.6 percent) still go to the mother compared to just 3.5 percent of fathers. This has caused some groups to campaign for greater rights for fathers in divorce settlements, notably in Murcia, where Association of Separated Parents of the Region of Murcia (APFS) is calling for reforms to guarantee shared custody of children. They say that currently in the region only 30 percent of divorces end up with shared custody.


How is custody decided in Spain?

Firstly, the basics.

If parents divorce in Spain, child custody is usually outlined in one of two ways:

For amicable divorces, as part of the ‘convenio regulador’ (like a regulating agreement made between the two parties) which must be approved by the courts.

According to legal experts at Crespo Law, this is essentially a document that contains an agreement between a couple regarding the property and other shared aspects of the marriage. It is also about setting the rules for the divorce and establishing conditions, both in terms of legally ending the marriage and anything that will survive it, such as, where appropriate, property or custody of children.


On the other hand, if the divorce is contentious and both parents are contesting custody of the children, custody is usually decided by a judge in a court decision. In this case, the decision is largely in the hands of your legal representation and the courts.

READ ALSO: Everything you need to know about getting divorced in Spain

How does shared custody work in Spain?

In Spain, like most countries, there are different ways of exercising shared custody. Generally in Spain, the convenio regulador or judge’s ruling, in the case of contentious divorces, will outline one of the following custody arrangements:

  • Shared custody in the same home, so the child always remains in the family home and the parents swap.
  • Shared custody in different homes, with the child is the one who moves from one parent to the other, usually with an agreed time share. Often in shared custody this means 50/50, but not always, and depends on the circumstances. For example, a 50/50 split could mean 3.5 days with each parent per week, or one week off, one week on.
  • Coexisting shared custody, when both parents live under the same roof. This arrangement is much rarer but does happen, depending on the circumstances of the divorce.

What does the law say?

Whatever shared custody arrangement is agreed (or ruled by the courts) the important thing is the wellbeing of the child, of course.

Article 4 of a 2011 ruling by the Spanish Supreme court, in which shared custody was established as the optimal solution in cases of amicable divorce, states that shared custody is always preferable to granting it exclusively to one of the parents, if possible:

"What matters is to guarantee or protect... the interest of the child, that although it is true that he/she has the right to a relationship with both parents, this will happen as long as their fundamental rights to physical and psychological integrity, freedom, education, privacy are not damaged."


What do judges consider?

Again, many of the considerations taken by Spanish judges when ruling on custody are similar to elsewhere in the world. According to family law experts Crespo Law, they include:

Having participated in their child’s life and routines from birth, such as taking them to school and picking them up, being part of family or community and school associations or WhatsApp groups, taking them to the doctor, clubs, and so on.

That ability to balance personal and work life. Often judges will consider the working schedules of parents in the last two years, their availability, possible reductions in working hours, and options for remote work all factor into the decision.

The geographical proximity of the homes and school: specifically, that the divorcing parents' homes are in the same municipality and/or neighbourhood as the school is an aspect that the judges take especially into account, so as not to overly disturb the child’s routine,

Family support options: judges will look favourably on parents who have family support options, and will consider the role of grandparents, uncles, aunts, and so on, including their age, location, personal and work status and health.

The relationship between the parents: of course, this is not relevant by itself to determine shared custody, but it is relevant when this relationship affects the child and potential living arrangements.

Psychosocial assessments: judges will consult outside experts, particularly psychologists, who often interview parents and children interviewed to observe how they interact with each other.

The age of the minors and the number of children: in general, there is a tendency not to separate the siblings.

The child’s wishes: this will be taken into account in any case in people over 12 years of age.

READ ALSO: Who gets the property in Spain when there's a divorce?

Our journalists at The Local are not legal experts. This article is intended as a helpful guide, but not to be taken authoritatively. It is always advisable to seek legal advice.


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