24th Apr 2024

Should I Divorce in England & Wales or Spain? Part 1

By Elizabeth Hicks

Should I Divorce in England or Spain?

 

In this blog, Family Law in Partnership Director Elizabeth Hicks and our guest lawyer and co-author Alberto Perez Cedillo of Alberto Perez Cedillo Spanish Lawyers & Solicitors, consider the key factors to bear in mind when deciding whether to start your divorce in England & Wales or in Spain.

This blog is split into two parts. In part 1 of this blog (below), we will be looking at the eligibility to divorce in Spain and England and Wales, the grounds to divorce in both jurisdictions and how matrimonial assets will be divided. 

According to immigration observatory data, as at 31 December 2022 there were over 400,000 Brits living in Spain. Other sources give a lesser figure and suggest it is closer to 300,000. The fact remains however that there are a huge number of Brits currently living in Spain. When a marriage breaks down the question to be asked is: Where should the divorce take place, and how will the courts in Spain/England & Wales deal with the finances?

Eligibility/jurisdiction to divorce in Spain

Spain

Spanish courts have jurisdiction for divorce under any of the following grounds:

  • The spouses are both habitually resident in Spain.
  • The spouses were both last habitually resident in Spain and one of them still resides there.
  • The respondent is habitually resident in Spain.
  • In the event of a joint application, either of the spouses is habitually resident in Spain.
  • The applicant is habitually resident in Spain and has resided in Spain for at least:
    • one year immediately before applying for a divorce; or
    • six months immediately before applying for a divorce (if they are a Spanish national).
  • Both spouses are Spanish nationals.

(Article 3, Recast Brussels II Regulation ((EU) 2019/1111).

If proceedings are filed both in Spain and England & Wales, or any other third state the Spanish Courts will assess whether to stay the proceedings on a party’s request based on a strict set of conditions.

England & Wales

In England & Wales, the court’s jurisdiction is the same as for Spain in terms of claiming habitual residence. However in addition it is possible to claim jurisdiction on the basis that:

  • the applicant is domiciled and habitually resident in England & Wales and has resided there for at least six months immediately before the application was made; or
  • both parties to the marriage are domiciled in England & Wales, or
  • either of the parties to the marriage is domiciled in England & Wales.

It can be seen therefore that in Spain, the test is one of either habitual residence or nationality whereas in England & Wales, we consider habitual residence and the concept of domicile. Everyone has a country of domicile but this can change during a person’s lifetime.

Grounds for divorce 

Spain

In Spain, there are no grounds for divorce. This applies to same-sex and opposite-sex spouses. A minimum of three months between the date of celebration of the marriage and the grant of the divorce must elapse but exceptions may apply. Filing for divorce in Spain means asking the court to decide on the dissolution of the marriage, but the parties shall also request within the divorce process any maintenance provisions for the spouse and children and/or the allocation of the use of the matrimonial home.

The dissolution of the matrimonial property regime is dealt with in separate proceedings and the Court will not automatically deal with this as part of the divorce process.

England & Wales

Since 6 April 2022, England & Wales has an entirely ‘no fault’ divorce system.  The application for divorce may either be made by one or both parties filing a statement of marital breakdown.  The position is the same for opposite and same sex marriages. It is not possible to defend a divorce unless challenging jurisdiction.  The divorce process is straightforward and is dealt with entirely online through the court portal. The minimum time frame for the divorce to be processed is 26 weeks, starting on the date the application is filed at court.  A divorce cannot be started within the first year of marriage.

The financial aspects of the divorce are dealt with by a separate process to the divorce itself and either spouse can start financial remedy proceedings at any stage once the divorce process is underway. The court will not automatically deal with the financial aspects of the divorce within the divorce process itself.

Division of matrimonial assets

Spain

In Spain, every marriage has a matrimonial property regime, which either applies by default or by an agreement of the parties which is contained in a public deed. Property regimes which are applicable by default depend entirely on the domicile (known as the “vecindad civil”) of the spouses and vary as follows:

  • Catalonia and Balearic Islands: Separation of Assets matrimonial property regime applies.
  • Navarra and Basque Country: their formal matrimonial property regime applies.
  • All other Autonomous Communities within Spain: Community of Assets property regime applies.

The parties can apply, jointly or separately, for the courts to proceed with the liquidation of their matrimonial property regime of community of assets. The Court is bound by the matrimonial property regime applicable when distributing the parties’ assets and it cannot depart from or override it.

England & Wales

In England & Wales, both spouses have the same claims against each other arising out of the marriage. It is possible to get divorced without having a financial order in place but this is not recommended. How the court decides to divide the spouses’ assets and income is governed by the Matrimonial Causes Act 1973 and the case law which has been decided since the Act came into force.

Section 25 Matrimonial Causes Act 1973 sets out the factors which the court must take into account on a divorce. The court must give first consideration to the welfare of any child under the age of 18 and must look at all the circumstances of the case.

No one factor takes priority. The case law in recent years has confirmed that fairness of outcome is key. Furthermore, there are three particular aspects of fairness which the court has to consider which are:

Needs, compensation and sharing.

The (then) House of Lords in Miller -v- Miller and McFarlane -v- McFarlane [2006] (in which FLiP represented Mrs McFarlane) set out that these three principles needed to be considered in every case. In reality, the most important principles which apply are needs and sharing. The Court will always want to ensure that both parties’ needs are met by the financial award and will want to ensure that the assets acquired during the marriage are shared. This has meant that in practice the courts will look at whether an asset is matrimonial (ie. acquired during the marriage from one or both parties’ endeavours) or non matrimonial (acquired pre marriage or from external sources during the marriage eg inheritance but has not been used or “intermingled” and essentially kept separate and not used by both spouses during the marriage itself). Non matrimonial assets are retained by the spouse who acquired them unless the matrimonial assets are not enough in themselves to meet needs.

The concept of needs is an elastic one but as its most basic, everyone needs somewhere to live and enough money to put clothes on their back and food on their table. Depending on how a couple have lived their life during their marriage, their needs may have increased.

The court will consider each of the Section 25 factors in turn and look at achieving an outcome that meets needs and provides for sharing of the matrimonial assets. Each and every case is decided on its own facts and the outcome is discretionary.

Join Elizabeth and Alberto in part 2 of this blog where they will be looking at how the countries differ when determining the payment of spousal maintenance as well as child maintenance and the division of pension assets. 

Elizabeth Hicks APC

Elizabeth specialises in all areas of family law with a particular focus in advising HNW and UHNW clients on complex cross jurisdictional issues of family, matrimonial and trusts law. Her work includes divorce, contested financial remedy cases, children cases and preparing Pre and Post Marital Agreements. Elizabeth’s cases frequently have an international dimension and many of her clients have substantial assets.

Alberto is a dually qualified Spanish Abogado and English solicitor with over 20 years of experience in English, Spanish and international family law. He has expertise in multi- jurisdiction litigation, including forum disputes, international treaties, international enforcement and analysis of Spanish law, financial remedy applications and international children cases including Hague Convention cases.