Family Law in Spain

Family law in Spain: a cornerstone in people’s lives

Welex, your family lawyer in Spain and divorce lawyer in Marbella.

Spain is the fifth country in Europe in which marriages fails the most, after the Czech Republic, Luxembourg, Denmark and Portugal, according to data from the General Council of the Judiciary (CGP).

According to statistics provided by the Spanish agency, in 2017 a total of 31,694 marriages severed their bond in the Iberian country, which means that for every 100 weddings there are 60 divorces while in Portugal for every 100 weddings there are 70 divorces.

In the last decade, legal regulations in relation to family law in Spain have been changing to respond to a number of approaches within the context of the formation of a couple and their possible offspring.

Family law in Spain is one of the cornerstones that regulate the personal and patrimonial relations of family members between them and regarding third parties.

It has a vital relevance, explains Mr Rafael Andrades, a divorce lawyer specialised in family law and working for Welex, the prestigious consultancy specialising in economic, legal and tax advice based in Marbella and capable to advice throughout the Costa del Sol and the rest of Spain.

It also has the intrinsic quality of serving as a kind of family umbrella to avoid future problems when a marriage or partnership is dissolved; the problem is that people only look for a lawyer in Spain when they have a legal setback or are on the verge of divorce.

In each and every one of the structures described, professional and specialised legal and tax advice can be decisive. If you plan to hire or have hired the delivery of goods or services, do not hesitate to contact our law firm in Marbella to assure your obligations and rights regarding the contract you are planning, or if in the execution of the contract there are breaches either by you or by the person with whom you have contracted.

It is Book IV that deals with obligations and contracts in Spain, in which it devotes its first two titles to general provisions on obligations and contracts, regulating from its third title the following:

«Family law in Spain has always tended towards the private sphere and that means that many people self-regulate their relationship, and ask for a lawyer advice just when a problem arises. Nobody usually seeks the opinion of a lawyer or someone specialised in family law to get married or to regulate their relationship with minors, something unadvisable given that what we do not regulate today will be against us in the future», Andrades said in an exclusive interview.

Generally, the search for a lawyer or legal advisor in Spain occurs when there is already a difficulty or when it is proposed to break the marriage bond; this is when a whole range of vicissitudes appears.

Not only personal problems, says Mr Andrades, who specialises in family law in Spain, but also in civil matters such as the extinction of the matrimonial bond and matters of patrimonial order.

«Many questions arise, who is entitled with the use and enjoyment of the home in Spain, what happens if the use and enjoyment of the marital home was held by the family itself but the right of ownership belonged to a third party, for example, the parents», explains Andrades.

And continues: «Sometimes we find situations in which parents facilitate in some way the marriage and the constitution of a family when they have a house and leave it to provide a home for that new family unit, what happens to that house when the marriage bond is broken, what happens to the alimony, is there a compensatory pension or is there not? All of these issues arise when they find themselves in a marital crisis situation and not before”. Your WeLex family law lawyer in Spain gives you the answer!

Many pitfalls could be avoided: above all, saving time, money and discomfort if, for example, there were an agreement or covenant in marriage settlements and good legal advice was available even before the marriage or the union of the couple was formalised.

In this regard, WeLex believes that being advised during the life of the marriage and/or throughout the relationship is something that «we strongly recommend».

«Because we ask for advice throughout our lives for many things but we don’t for the development of our own family life with the economic consequences that derives from it,” explains the prominent lawyer of Welex in Marbella.

In addition, we must demystify that an agreement or convention reached in the seat of matrimonial capitulations is an expensive legal act, inaccessible to pay, or that only people with a high economic status or even celebrities who seek to protect the patrimony created previously to the formation of their marriage or their life as a couple.

Here in Spain, you can’t find marriage agreements as seen in the jurisprudence and the Anglo-Saxon system, but we do have a series of pacts by which we can self-regulate conjugal life from the economic perspective; we do this through the marital property agreement that can be carried out before and during the marriage. The marital property agreement must be subscribed in a public document in order to be valid… this is a requirement ad solemnitatem.

It is necessary to have it, continues this lawyer specialised in family law in Spain, because without this requirement there is no such marital property agreement, «we can have agreements but we will not have marital property agreement if we do not constitute it in public document”.

It is also subject to a condition of validity, a conditio iuris, if the marriage is not contracted during the year following the subscription of the marital property agreement, it becomes null and void.

«The intention is to regulate prior to the celebration of the marriage the economic effects, however, there are issues with economic content and others that are not such as the matter of recognition of children, that is also welcomed in the marital property agreement», adds this great lawyer in Marbella.

It is essential, adds Mr Andrades, your lawyer specialising in family law in Spain, that in any case such capitulations must be always held with technical assistance and the client must have all the advice in this regard.

However, it can also be done after marriage. The Welex lawyer points out that: «Our system establishes a system of marriage settlements and in the absence of an agreement or when they become null, we have a supplementary system of economic matrimonial regime that would be subject to certain obligations on the part of the contracting parties».

Marbella occupies a privileged enclave on the Costa del Sol, in Spain it is one of the main centres of attraction for foreigners who decide to change their residence to live in the beautiful and peaceful coastal city.

According to data from the National Institute of Statistics (Instituto Nacional de Estadística, INE) last year there were 33,451 foreigners registered in Marbella, 23.64% of the total population of the municipality.

Like everyone else, people make different decisions, from buying a property in Spain, to renting it, to getting married and divorced in Spain, to getting married, to having their own children or adopting them; these are natural aspects but they include legal actions and processes in which, as foreigners, they should seek relevant legal advice since they are under the Spanish Constitution and the current Spanish legal framework.

Precisely on the Costa del Sol there are many problems with the interpretation and application of international law. In this respect, Andrades explains that «for the application of private international law we use rules of referral and rules of jurisdiction in order to find the applicable rule in force for the specific case».

Attending only to the Spanish law is a mistake «In WeLex, your lawyer specialised in family law in Spain, we are very used to observe the foreign rule applicable in the resolution of your case» so Mr Andrades refers, beyond the rule, to the superior interest of protecting the minor or the public interest: «In Spain the application of foreign law is subject to and limited by public order and the protection of the superior interest of the minor, even if it is a foreign rule, we would have to see if it is adapted to the specific case and if it respects that superior interest; if it does not respect it, we could use Spanish regulations depending on the case».

Because in our law firm in Marbella we have a very wide range of highly qualified professionals from different nationalities who control the legal system in combination with foreign law, speaking different languages, being able to assist you in Dutch, French, English and German, which provides a very significant contribution in the processing of your cases and gives them fluidity in their resolution.

One of the great dilemmas concerns with children when a marriage or a common-law couple breaks up, that immediate and future coexistence often becomes a headache.

Mr Andrades, a lawyer specialising in family law in Spain, explained that in many cases things could become «very complicated». The Spanish legal system provided for the participation (as a measure for the protection of minors) of the Public Prosecutor’s Office in the function constitutionally set out in article 123 of the Spanish Constitution of promoting the action of justice in defence of legality, the rights of citizens and the public interest protected by law; ex officio or at the request of an interested party.

«Within this protection of the public interest protected by Spanish law is the protection of the child, it is not uncommon that in certain processes of marital crisis, the custody and guardianship of the child are disputed, sometimes disregarding the real needs of the children, and this, given that the custody and guardianship of the child has a series of consequences, such as the use and enjoyment of the family home or the establishment of a maintenance allowance», adds the expert family law lawyer from Welex.

There are a number of aspects which are also highly contentious and which also give rise to conflicts, for example, the visiting regime and its present and future application.

«Our law firm in Marbella is proud to raise the regulation agreements between parents and subsidiaries, in which the regime of visits is more detailed, so that both the custodian and noncustodial have knowledge and certainty of their regime from the first moment», says Mr Andrades.

In this sense, a good law firm in Spain should also seek to anticipate litigation, Welex ensures not only to obtain for its clients a good trial … but to avoid future trials.

In the last decade there have been several alterations in Civil law in Spain, an area in which family law is circumscribed. One very interesting modification is related to the use and enjoyment of housing after a divorce in Spain.

In November 2018, the Civil Division of the Supreme Court handed entered judgment No. 641/2018 Rec 982/2018 of 20/11/2018 concerning the effect of the custodial parent living with a new partner under the same roof as the family home awarded in the divorce judgment.

In a press release, the Supreme Court reported the following: «In the event of a divorce, the parent living with his or her children in the family home on a community property basis, who has a stable partner and who enters the home, will lose the right to use the family home. Once the community of property is liquidated, the spouse would have to leave the home.

Although he explains that this modification and new measure «does not deprive minors of their right to housing in Spain, nor does it change custody» many former couples who have remade their lives by living with the new couple under the housing that was part of the previous marriage are currently facing this new regulation.

Family law attorney Andrades comments that this jurisprudence has established that the custodian cannot constitute a new family unit with a new partner inside the old family home.

«It is understood that it is no longer subordinated to the best interest of the child which is the housing interest, but its object is to constitute a new family nucleus and therefore it is no longer affected by that need; I believe that this jurisprudence was very desirable and necessary because it puts an end to a situation of conflict and above all that we understand as unjust since the non-custodial parent often has to continue paying the visiting regime, the alimony, the compensatory pension and even pay 50% of the mortgage that corresponds to him for being co-owner of the same one together with the derived expenses such as the IBI and community fees», he points out.

It’s a common mistake. The fact that we have a system in which civil marriage is promoted and is encouraged by the legal system by facilitating or endowing the spouses with the right to inheritance, does not detract from the fact that in other situations to which the legal system recognizes full validity assimilated to the marriage bond, obligations arise; unmarried couples have rights and obligations towards each other and towards their children, creating a bond assimilated to the marriage bond. They can acquire property as joint tenants and thus acquire co-ownership of their family home; and it does not remove them from the possibility of contributing to the support of the family’s burdens.

Also, Mr Andrades adds, there are situations in which these common law couples in Spain have offspring, «that offspring are given exactly the same rights as offspring born within a marriage bond”. This is protected by Article 39 of the Spanish Constitution.

Yes, it can make things easier… but it’s not the ordinary case.

We study this a lot in the issues of violence against women, when can be considered that a person has a specific relationship? And when can be considered that a person has a relationship assimilated to marriage in Spain? WeLex family lawyers in Spain use a qualitative criterion that is accepted by the jurisprudence. We do not distinguish a month, two, three or five, but rather we look at whether there is a common life project, whether there are plans for the future or whether certain actions have been taken to form the concept that we all have as a family; that is a more uxorio coexistence.

By the way, Welex advises the inscription in the register of common-law couples in Spain, as Mr Andrades explains in detail: «We assist our clients in the inscription in the register of common-law couples and it is advisable because it facilitates us, in the case of death of any of the two members, to go to any other means of proof valid in law to prove the reality of the common-law couple, which contributes in many aspects such as, for example, the recognition of the right to a widowhood pension».

For all these reasons, it is highly recommended to get to know all the benefits of family law in Spain, which basically has applications in all sectors of the legal system.

It is also necessary to seek advice from reliable and prestigious professionals who know Spanish legislation and can also offer their services in several languages with fluency and confidence.

Welex is an established family law firm in Spain and divorce lawyers in Marbella and on the Costa del Sol; it has earned its prestigious reputation in recent years.

Welex is an established law and accountancy firm in Marbella and on the Costa del Sol; it has earned its prestigious reputation in recent years. With Welex, your family law lawyer in Spain, clients will find effective and appropriate advice to their own circumstances, «each client is different so the service is personalised», both accounting, tax advice, commercial law, civil law, family law and criminal law, addressing all matters related to real estate transactions, wills and inheritance among other services, can assist you in your affairs from a multidisciplinary perspective under the same roof.

Do you want to get married in Spain? Do you want to get divorced in Spain? Don’t hesitate to contact our family law firm in Marbella now!

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