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.
For any doubt or question you might have, feel free to leave a comment or to get in contact with us at mathos@rodriguezbernal.com.
Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice.
In order to encourage both national and international investment, the Government has passed a draft of the new “law of entrepreneurs”. Although the draft is still awaiting final approval, the basic guidelines of the future law have been set, which include the development of business projects in Spain, as well job creation.
However, one of the most important measures adopted in this new regulation is the granting of residence permits to those who:
a) Create employment through the establishment and implementation of business projects;
b) Foreigners who invest in business projects that create jobs or who have a relevant impact from the perspective of socio-economic or scientific and technological innovation as well as if they made a significant investment or business of general interest project.
c) Invest in properteies located in Spanish territory in a quantity greater than €500,000 (total minimum investment, which can consist in the purchase of several properties).
d) Take on public debt amounting to € 2,000,000.
Other conditions that have been set are the following:
a) Not to be an EU citizen.
b) Not to be in Spain illegally.
c) Have no criminal records in Spain or in the countries where they have resided in the last five years.
d) Have either a public or private health insurance and sufficient economic resources.
e) The buyer must use their own capital and not have to resort to funding from other sources for the purchase.
The Government also intends to create a centralised office for those who request this type of residence permit, aiming to unify and streamline procedures.
Other important innovations include a specific tax regime for entrepreneurs, which will allow different tax incentives on income tax to be applied when investing in or financing start-ups. Also, the law will attempt to simplify and facilitate procedures for the creation and closure of companies.
CURRENT REGULATION
Until the above regulation enters into force, temporary residence permits will continue to be regulated be the Royal Decree 557/2011, of 20 of April, which applies to those foreigners who are in Spain legally for a period of between ninety days and five years.
The initial residence permit has a duration of only one year and applicants must comply with a series of legal criteria (not be in Spain illegally, not have a criminal record for crimes committed in the last five years, etc.) and must hand in a multitude of documents (passport, professional qualifications, etc.)
From Rodriguezbernal.com we will keep readers up to date with the legal reforms that will come about with the entry into force of new laws in this area, as well as for more details of the current procedure for setting up a company in Spanish territory.
Article by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice.
NEW EU REGULATION ON INHERITANCE
Foreign residents in Spain should know that a new EU Regulation on inheritance has been approved as of the 4 of July 2012. The regulation will apply from the 17 of August 2015 and although, for the moment, the United Kingdom, Irland and Denmark have chosen not to take part, citizens from these countries living in Spanish territory could be affected.
The Regulation nº 650/2012 introduces several novelties that could be of interest to the different ex-pat communities.
For example, whereas current legislation would force a foreign resident´s inheritance to be treated according to the law of his or her nationality, the new EU Regulation would apply the law of the country of habitual residence (except when there is a manifestly stronger link with another country). However, it is worth noting that it shall also be possible to order expressly in a will that the person´s national law be applied instead.
This fact will have important ramifications due to differences between Spanish law and the inheritance laws of many of the countries to which the Regulation will be applied.
Most importantly, Spanish law places significant restrictions on the freedom to dispose of one´s possessions by will, as it forces the deceased to leave a full two thirds of his or her property to the children, leaving only one third to be disposed of as he or she sees fit.
It is for this reason that it is highly recommended that foreign residents make a will designating their national law, if they hope to have the same freedom to leave their assets to whomever they like that they would have in their home country. Good estate planning will allow the inheritance process to progress more smoothly, avoiding unnecessary costs and delays and minimizing the chances of a will being contested.
Similarly, the new Regulation allows the courts of the country of habitual residence to judge with regards to the inheritance, except when the parties concerned agree to that the courts of the country whose law has been chosen should be competent.
Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal law firm.
REFORM OF THE TENANCY LAWS
A much needed reform of the tenency laws has already entered into force. Given the fact that many Spaniards and ex-pats have chosen to invest their savings in real estate, while others do not have the means to buy their own housing in Sapin, the reform is a step in the right direction to meeting the needs of all parties. Therefore, law makers have sought to facilitate the leasing of many of these empty homes by altering the rights and obligations of each of the parties in the tenency agreeament..
The main novelties of the reform (law 4/2013, of 4 of June) are as follows:
1) The obligatory express extension of the contract goes from being five years to only three years, while the automatic “tacit extension” goes from being three years to only one year.
2) Faster eviction. In the event of non-payment, the eviction procedure can put into effect in just ten days. However, the tenant can avoid eviction if he or she pays the rent which is owed.
3) The tenant may leave the accomodation, after at least six months, as long as he or she gives warning at least one month in advance and without having to pay indemnities.
4) Landlords may reinstall themselves in the property if the accommodation becomes indispensable either for the landlords themselves, a first degree relative or a spouse (after a divorce or annulment).
5) After buying a property that is being rented, the buyer does not have to respect the terms and conditions of the tenency agreement. However, these terms and conditions will have to be respected if the contract has been registered in the land registry (registro de la propiedad).
6) If a tenant proposes a reform of the property, an agreement may be reached with the owner so that the cost of the reform is discounted from the monthly rent payments.
7) The tenency contract can be registered in the land registry, as a means of sealing the agreement.
8) A late payment register has been created which will allow landlords to find out which potential tenants have already disrespected previous tenancy agreements.
9) From June 1 2013, it is mandatory to have an “energy efficiency certificate” to be able to sell or rent real estate for more than four months.
HOLIDAY RENTALS
Lastly, one of the most controversial aspects of the reform is that it has suppressed the express acceptance that the old law made of so called “holiday rentals”.
It is no secret that the last few decades have produced a new trend of foreign tourists staying in rental accomodation during their holiday, instead of going to hotels. In 2011, for example, the growth of holiday rentals was 14.8%, while in 2012 the increase was 8.7%.
The decision to eliminate the express mention of theis possibility in the law is probably due to the hotel lobby, which loses significant profits with the popularity of rental accommodation. However, it has been suggested that such a move has infringed the rights of home owners who seek a viable solution to the unfavorable economic situation which we find ourselves in and who struggle to pay their mortgage.
Undeniably, there exists an underground market for these rentals, where taxes on rentals are not paid to the Spanish state, and this illegal leasing by seasons seems especially prevalent in coastal areas. It is estimated that this kind of fraud could amount to nearly to 2.926 billion euros. However, it has yet to be seen whether future laws will offer increased legal protection to those landlords who merely seek to lease their property in the proper legal conditions, avoiding any tax fraud.
Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal law firm.
David Cameron seeks to restrict access to websites with adult content by default, blocking these web sites from computers, tablets or smartphones and beginning in 2014. The Prime Minister proposes a general block on pornographic web pages, a measure which in Spain would clearly be against free competition, as well as the right to privacy and freedom of expression.
This initiative, which aims to protect children, has created a stir, since it directly attacks the right to privacy of the users, since users who wish to access these types of websites must expressly request the deactivation of this tool from their Internet Service Provider. In effect, the British Government will have created a kind of register for people who decide to open up access to adult websites on their computers.
As of yet, Cameron´s announcement is only a project, albeit one that appears to discriminate against a legal industry and produce censorship on the net. It is worth noting that, up until now, censorship on the internet has been associated with topics like the promotion of terrorism or works protected by copyright laws and did not have a social or ideological motivation.
However, it is doubtful that such legislation could come into force in Spain. Many articles of the Spanish Constitution protect the freedom of expression (20), freedom of enterprise (38) and the prohibition on censorship without a prior judicial decision (20.5).
Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice.
Introduction
The art market is a prime example of British achievement in a highly competitive global environment. Britain has 29% of the global art and antiques market and is the second largest market in the world, second in size only to the United States. The British art and antiques market generated £7.7 billion in sales and directly supported over 60,000 jobs in 2009.
This success is based, above all, on a fiscal and regulatory environment that has enabled the UK to attract the greatest works of art for sale because this market is highly dependent on crossborder trade: in 2009 art to the value of £2 billion was imported into the UK and exports totalled £2.2 billion.
In contrast to other regulations on continental Law, like Spanish, French or Italian, which are characterized by rigidity, UK legislation on cultural goods are more flexible and less protective that the first ones.
The comparative chart below despictes the differences between Spanish and English Regulations on Cultural Goods and explains itself why the English market of works of art is so relevant in the world.
COMPARATIVE CHART OF ENGLISH AND SPANISH REGULATIONS ON CULTURAL GOODS
| UNITED KINGDOM / FLEXIBLE SYSTEM | SPAIN / RIGID SYSTEM | ||
| NATIONAL TRADE | GENERAL RULE | -Free trade | -Right of first offer-Right of repurchase |
| EXCEPTIONS | -Treasure finds | Free trade: Goods non registered in Public Registries created for this purpose (Inventario General de Bienes Muebles e Registro de Bienes de Interés Cultural) | |
| INTERNATIONAL TRADE | EXPORT LICENSE | -Certain cultural objects more than 50 years of age and valued above specified financial thresholds. | -For those cultural goods belonging to Spanish Heritage and:-More that 100 years of age-or registered in Inventario General de Bienes Muebles or in the process to be included in it.-Unexportable goods: Cultural goods registered in Registro General de Bienes de Interés Cultural or in the process to be included in it. |
| TERM TO GRANT | -In case it is considered the object does not satisfy any of the Waverley criteria, the licence can be granted in about 2 weeks. | –About 3 months. | |
| CRITERIA TO GRANT | An object does not satisfy any of the Waverley criteria.-History–Aesthetics-Scholarship | -Undetermined criteria | |
| IRREVOCABLE OFFER | NO. If export license is refused applicant continues being owner. | YES. State can acquire the cultural goods within the term of 3 months from the day of application submit in exchange for paying the value declared by the applicant. | |
| INFRIDGEMENT | -Subject to penalties including criminal prosecution under the Customs and Excise Management Act 1979.-Subject to seizure under the provisions of the same Act. | -Subject to penalties including criminal prosecution under Criminal Code.-Subject to seizure under Spanish Heritage Act (Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español) |
Free trade as rule, restraints as exception
Finds found in England, Wales or Nothern Ireland
With the exception of Treasure finds all archaeological finds found in England , Wales or Northern Ireland are normally the property of the landowner. If the object has been recently discovered and the person selling the object is the finder, then they will need to have the permission of the landowner on whose land the object was found before they can sell it.
Whatever is the age of these objects can be sold in England or Wales without almost any obstacle. Non-Treasure finds found in England or Wales may have been recorded with the Portable Antiquities Scheme (a voluntary scheme to record archaeological objects found by the public) and therefore documentation may exist to show where an object was reported as being found and whether it has been properly recorded. It is convenient to do this in order to justify the provenance and the legal title to sell the object later.
Treasure finds
According to Treasure Act 1996 and Treasure (Designation) Order 2002: the following finds are Treasure, if found after 24 September 1997 (or, in the case of category 2, if found after 1 January 2003 ): Mainly, some kinds of metallic objects (normally coins) with a certain age and proportion of precious metal.
Rest of works of art
Rest of works of art enjoy (pictures, sculptures, etc) this same freedom of trade.
Spanish regulation
On the contrary, in Spain it is set up a right of first offer and repurchase (derecho de tanteo y retracto) in favour of State and Region -Comunidad Autónoma- in respect to those cultural goods registered in Public Registries created for this purpose (Inventario General de Bienes Muebles e Registro de Bienes de Interés Cultural). Both public bodies have the term of two month as to decide whether they acquire the cultural property. So this proceeding complicates remarkably commerce and dissuades from purchasing cultural properties.
Export license
The export licensing controls for objects of cultural interest are designed to balance the need to keep nationally important objects in this country, the rights of owners and the encouragement of a thriving art trade. the rights of the owner selling the goods; the exporter or overseas purchaser; and the position and reputation of the UK as an international art market.
When must we apply for an individual export license?
Certain cultural objects more than 50 years of age and valued above specified financial thresholds will require an individual licence for export out of the United Kingdom whether on a permanent or temporary basis.
However, if you can provide evidence with your licence application that the object arrived in the UK within the last 50 years, your application will not normally be referred to an Expert Adviser. If there is no referral to an Expert Adviser, the licence can normally be granted within five working days from receipt of the application.
Spanish regulation
It must be applied export license for those cultural goods belonging to Spanish Heritage with more that 100 years of age or registered in Inventario General de Bienes Muebles or in the process to be included in it.
Cultural goods registered in Registro General de Bienes de Interés Cultural or in the process to be included in it are unexportable.
Term to decide: 3 month
Tax: from 5 up to 30% of the declared value.
Cultural good of national importance
An Expert Adviser may object to the granting of a licence if he or she believes that an object satisfies one or more of the Waverley criteria. If the Expert Adviser objects, the Export Licensing Unit refers the licence application to the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest. If no objection is lodged, the export licence will normally be granted. Usually, Expert Advisers collectively object to the granting of licences for about 25 to 50 objects each year out of a total of approximately 3,000 applications (covering approximately 20,000 items) referred to them.
Spanish regulation
In Spain, the concept “Spanish Heritage” is a very broad concept which comprise almost any good with a simple relevance although is of foreign provenance.
Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest
The Reviewing Committee is a non-statutory independent body set up to advise the Secretary of State on whether a cultural object which is the subject of an application for an export licence is of national importance under the Waverley criteria.
What are the Waverley criteria
Objects are assessed against the following three criteria (named after the 1950 committee chaired by Viscount Waverley which was appointed to consider and advise on an export policy).
These are:
History: Is it so closely connected with the UK history and national life that its departure would be a misfortune? Waverley 1
Aesthetics: Is it of outstanding aesthetic importance? Waverley 2
Scholarship: Is it of outstanding significance for the study of some particular branch of art, learning or history? Waverley 3
The three Waverley criteria which are used to measure an item’s importance are not, and never have been, mutually exclusive, nor is any one criterion more important than the others. All items that meet the Waverley criteria are designated national treasures whose departure from the country would be a misfortune. An object need only meet one criterion to be deemed of Waverley standard.
Proceedings
Meeting is convened
When an export licence application is objected to by an Expert Adviser it is referred to the Reviewing Committee. Prior to the meeting the applicant is invited to submit a written statement to the Committee giving reasons why, in his or her opinion, the object does not satisfy any of the Waverley criteria. The Expert Adviser likewise submits a written statement as to why he or she believes the object satisfies one or more of the Waverley criteria. The Secretary to the Committee ensures that all parties see both statements one week before the meeting.
Appearing at the hearing
Applicant and one expert chosen can appear at the hearing, submit question and be asked.
Offer to purchase
If the Committee finds that the piece satisfies some of the Waverley criteria, it recommends to the Secretary of State that a decision on the licence application should be deferred for a specified period to enable an offer to purchase to be made at or above the fair market price, which will also be recommended by the Committee. (Normally an item is deferred for between two and six months although the Committee can recommend a longer or shorter deferral period).
If an owner receives an offer to purchase from a public body, he or she is free to accept or reject it. There is no compulsion on an owner to sell. However, where an owner does not accept an offer from a public body, the Secretary of State will take the existence of the offer into account when making a decision on the licence application, and will normally refuse a licence. Similarly, where an owner makes known his or her intention to refuse an offer from a public source, the Secretary of State will normally refuse a licence.
If an owner receives a private offer to purchase, again he or she is free to accept or reject it. There is no compulsion on an owner to sell. However, where an owner does not accept an offer from a private source, the Secretary of State will determine whether to grant the licence. In so doing, the Secretary of State will normally take the existence of an offer into account only where the private offer is combined with a signed undertaking that the offeror guarantees reasonable public access and satisfactory conservation and security arrangements. It is for the Secretary of State to decide whether the undertaking is adequate, but as a guideline, the following will be expected: a) reasonable public access to the object in a public institution. As a guideline, access for a minimum of 100 days a year (except in exceptional circumstances) will normally be considered to constitute reasonable public access; b) satisfactory conservation conditions and security arrangements; c) agreement not to part with ownership within ten years without obtaining an undertaking from the purchaser guaranteeing comparable requirements on access, conservation, security and re-sale; and d) confirmation by the public body concerned that it will facilitate the access guaranteed by the undertaking.
If the applicant accepts an offer to purchase, from either a public body or private source, your licence application will automatically be treated as withdrawn.
Spanish regulation
The value declared in the application will be considered as irrevocable offer in favor of State. In the term of three months this offer could be accepted.
Export licence should be granted
If the object does not satisfy any of the Waverley criteria, the Committee recommends that the export licence should be granted.
If the applicant does not receive an offer to purchase, your export licence will normally be granted at the end of the deferral period, although in some circumstances the Secretary of State may decide to defer a decision on your licence application for a further period.
Infringement
If an object is presented to Customs for export without an export licence where one is required, the exporter and any other party concerned with the unlicensed exportation may be subject to penalties including criminal prosecution under the Customs and Excise Management Act 1979. The unlicensed object may also be subject to seizure under the provisions of the same Act.
Law enforcement
- Treasure Act 1996: There is a legal obligation for all finders of Treasure to report these to a coroner within 14 days of making the find, or realising the find was Treasure. Penalty: imprisonment for up to 3 months and/or a fine up to £5,000.
- Dealing in Cultural Object (Offences) Act 2003: It is illegal to knowingly sell, buy or deal in tainted cultural objects (objects of historical, architectural or archaeological interest) illegally excavated or removed after 30 December 2003 . Penalty: imprisonment for up to 7 years and/or an unlimited fine (in the Crown Court).
- The Theft Act 1968 and Trespass may also be applicable.
- Customs and Excise Management Act 1979.
- Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español.
Sevilla Appeal Court (Civil Division) handed out an overwhelming judgment against abusive bank activity. The judgment contains a declaration of nullity of a contract “swap” (called “Clip Bankinter”) and condemn the bank to refund the client in 52.000,00 € and pay all the costs.
The AC judgment includes many interesting pronouncements as we summarize below:
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Bank must justify client was duly informed on all essential elements of the contract. Bank must be sure that the client has understood all possible risks involved.
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The contractual clauses referred to risks are very confused and ununderstandable.
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Whereas the bank had reserved the right to terminate the contract in case of variation of circumstances taken into account to enter into the contract, the client had not similar right, whereupon the relationship was unequal.
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Whereas the bank hardly assumed any risk, the client assumed serious ones. In fact, so it happened and the client was seriously damaged.
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Absolute imbalance between bank and client.
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Judgment describes the contract as “case paradigmatic of abuse of dominant position of the bank in relation to the client”.
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Contractual good faith is a special requirement that must be always observed in bank activity.
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Finally, this is one of few judgments in Spain which expressly says the swap was sold as a mere insurance contract by the branch manager. A clear case of negligent or fraudulent misrepresentation.
Antonio Pedro Rodríguez Bernal was the plaintiff’s lawyer in all instances of this civil proceeding. This judgment has already become unappealable.
Read the complete article in Spanish.
