It is no secret that the unfortunate reality of divorce is on the rise and, while modern marriages are significantly more stable than other sentimental arrangements, such as cohabitation, our legislators have made a great effort in recent years to reduce the angst and confusion surrounding divorce procedure.
A little known fact, however, is just how common so called “international divorces” have become. Statistics compiled by the newspaper ABC estimate that between eight and nine percent of Spanish divorces involve a foreign spouse, while between four and five percent involve two foreign spouses. It is for this reason that those English speaking residents considering filing for divorce in Spain may be curious to know more about the procedures involved, as well as the law which ought to be applied.
In these matters, it is absolutely essential to take into account recent European Union legislation, as the confusing panorama that existed between European countries in international divorce has become greatly simplified with the new Regulation 1259/2010, of the 20th December, which entered into force as recently as the 21st June 2012.
Before the entry into force of this EU Regulation, the Spanish Civil Code (article 107.2) declared that divorce ought to be governed by the law of the nationality which both parties have in common. In practical terms, this meant that if both spouses were nationals of the United Kingdom, the Spanish judge would have to apply British law, a state of affairs which often cost British ex pats large sums of money in legal costs and complicated the procedure considerably.
Quite wisely, EU legislators decided in the new Regulation to make the default law of application the law of the country in which the spouses reside in the moment of filing for divorce, greatly reducing legal costs (articles 5–8). However, foreign residents may still choose to have British law applied, if they expressly declare this preference.
However, it is to be noted that certain questions related to divorce have been excluded from the EU Regulation and continue to be regulated by the traditional system, such as custody of children or the economic effects of divorce.
It is also convenient to know in which country one should file for divorce. This is relevant, as it may be possible to choose between the courts of the United Kingdom and those of Spain and this choice may have a bearing on the speed of the process and even the outcome of the case.
In order to give a frame of reference, it is estimated that a divorce case in England usually takes about five to seven months to conclude and costs between one and two thousand pounds. On the other hand, those figures in Spain are one to two months (mutual agreement) and four to eight months (unilateral), the cost depending on the variables of the case. It is also worth noting that the economic expectations placed upon the financially “stronger” party in divorce proceedings tend to be greater in the UK than in Spain, while the “weaker” party will tend to benefit more.
At present, EU legislation (Regulation 2201/2003) allows one to file for divorce in any one of the following places:
a) The habitual domicile of the spouses.
b) The last habitual residence (as long as one of the spouses still lives there).
c) The habitual residence of the defendant.
d) The habitual residence of either of the spouses, if the divorce is by mutual agreement.
e) The habitual residence of the plaintiff if he or she has lived there over the course of at least a year immediately before filing for divorce (only six months if he or she is national of that country or has their domicile of origin there).
f) The country of both spouses´ shared nationality or domicile.
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Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice.