A separation involving two nationalities, a property in Spain and children who may or may not stay in the country raises questions Spanish couples never face. Which country’s courts decide, which country’s law applies, and whether a child can legally be taken home are separate questions with separate answers.
This page sets out how divorce works in Spain and what changes when the family is international.
Which country decides
Jurisdiction is not a matter of choice or convenience. In broad terms, Spanish courts have jurisdiction where the couple habitually reside in Spain, or where the respondent does, and there are further rules where only one spouse remains.
Where more than one country could hear the case, the first court properly seised generally keeps it. That makes timing significant, and it is one of the few areas where acting quickly changes the outcome rather than just the speed.
Which law the court applies is a separate question again: a Spanish court does not automatically apply Spanish law, and couples can in some circumstances have chosen the applicable law in advance.
How divorce works in Spain
Spain has no-fault divorce. Neither spouse has to prove anything against the other, and no ground beyond the passage of three months from the marriage is required. There is no need to separate first.
| Route | When it is available | Typical duration |
|---|---|---|
| By agreement (mutuo acuerdo) | Both spouses agree the terms | Two to four months |
| By agreement at a notary | Both agree and there are no minor children | Weeks |
| Contested (contencioso) | No agreement on children, money or property | Commonly a year or more |
An agreed divorce runs on a convenio regulador, a settlement agreement covering the children, the family home, maintenance and the division of assets. The court reviews it, and where there are children it will not approve terms that are against their interests.
Children
Spanish courts decide custody by reference to the interests of the child. Shared custody has become common rather than exceptional, though it is not automatic and depends on the circumstances of the particular family.
Parental responsibility is normally shared regardless of where the child lives, which means decisions about schooling, medical treatment and travel need both parents.
Taking a child out of Spain
This is the point at which international families most often get into serious trouble. Where both parents hold parental responsibility, one parent cannot relocate a child abroad without the other’s consent or a court order. Doing so is treated as international child abduction under the 1980 Hague Convention, and the usual outcome is an order for the child’s prompt return.
Going home with the children after a separation feels natural and is often meant entirely innocently. It is still the single most damaging step a parent in this position can take. If you are considering it, take advice first.
Maintenance
Child maintenance is calculated from the needs of the children and the resources of each parent, and courts use guideline tables as a reference. It continues while the child is dependent, which can extend well past eighteen.
Spousal maintenance is different and is not automatic: it compensates a spouse left in a worse economic position by the divorce, and it may be time-limited.
Property and the matrimonial regime
What happens to assets depends on the matrimonial property regime. In most of Spain the default is gananciales, community of property, under which assets acquired during the marriage are shared. Where a foreign law applies, or where the couple made a pre-nuptial agreement, the position can be quite different.
A Spanish property owned jointly does not divide itself. If neither spouse buys the other out, article 400 of the Civil Code allows either co-owner to force the division or sale.
Domestic violence
Spain has specialised courts for gender violence, and protective measures can be obtained quickly, including orders on residence, contact and maintenance. If you are at risk, that route is available regardless of nationality or immigration status, and it does not depend on being able to fund a case.
Frequently asked questions
We married in the UK. Can we divorce in Spain?
Usually yes, if the jurisdiction rules point to Spain. The marriage will need to be recognised, which is normally a matter of producing the certificate with an apostille and a sworn translation.
Can we divorce without going to court?
If you agree on everything and have no minor children, a notarial divorce is possible and is considerably faster. With minor children, a judge must approve the arrangements.
Do both of us need our own lawyer?
In an agreed divorce one lawyer can act for both spouses. If there is any disagreement, or any imbalance between you, separate representation is the safer course and we will say so.
My ex has stopped paying maintenance. What can I do?
Maintenance ordered by a court is enforceable, including by attachment of wages, bank accounts and property, and persistent non-payment can also be a criminal offence. Enforcement across borders is possible within the EU and under other instruments.
How long will it take?
An agreed divorce is typically two to four months. A contested one commonly takes a year or more, and longer where assets in more than one country have to be valued.
Talk to us
If children or a Spanish property are involved, the order in which things are done matters. Contact us here, or call 654 581 493.