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Family Law on the Costa del Sol

This guide was written by Manzanares Abogados S.L. (info@manzanaresinternational.com) in collaboration with Guides.Global (office@guides.global).

It was written on 1 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.

Our guides are prepared by professionals from many countries. They are, of necessity, both brief and general and can take no account of your personal circumstances. They are intended to be a good introduction to the subject BUT ARE NO SUBSTITUTE FOR PROPER PROFESSIONAL ADVICE, which our contributors will usually be happy to provide upon request.

The advice and opinions contained in the guides are those of the author and are not necessarily those of Guides.Global.

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The scope of this guide

Family law is a very wide ranging field of law. It covers all aspects of family life and family breakdown.

This guide includes sections about:

This guide describes, in particular, how to deal with all of these issues in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) lightbulb image - click here for more information on this subject to another.

This guide does not cover (or covers only briefly) the formalities associated with marriage, divorce or child abduction on the Costa del Sol.

Introduction

Family law is immensely complex because families are immensely complex. It also - together with criminal law - reflects the nature of the historic and cultural basis of a society much more clearly than any other aspect of law. How a society deals with the family is absolutely central to that society's core values.

Spain is a traditional and Catholic country with traditional views about family values. Despite this it has incorporated some of the most modern thinking in terms of the regulation of family life and dealing with disputes that arise in the course of family life.

Marriage, civil unions and domestic partnerships on the Costa del Sol

Marriage in Spain

Spain has one of the highest marriage rates (and lowest non-married cohabitation rates) in the Western world. Marriage is considered a vital component of Spanish society and the whole Spanish way of life.

The rights and duties that flow from marriage are enforced considerably more aggressively than in many comparable countries.

See our Guide to Marriage on the Costa del Sol for the formalities required of foreigners wishing to marry in the country.

Will my marriage in Spain be recognised elsewhere?

Yes. If you complied with the Spanish rules concerning marriage - in particular, the rules about residency, age and capacity - the marriage you contracted in Spain will be recognized almost anywhere in the world. Spain is a signatory to the Hague Conference on Private International Law and the Hague Marriage Convention of 1978. Under the Hague Convention:

A marriage validly entered into under the law of the State of Celebration or which subsequently becomes valid under that law shall be considered as such in all contracting states.

This convention, which came into force in 1991, is gradually acquiring more and more signatory states but it is still in its infancy. However, even in countries which have not yet signed up to the Hague Marriage Convention will recognize a Spanish marriage on the basis of the basic principle of international law and the provisions of the Hague Conference on Private International Law , which has been accepted by almost every country outside Africa and the Middle East.

Will my marriage entered into in another country be recognised in Spain?

Yes. Provided it was valid in the country where you entered into it.

Civil unions & domestic partnerships on the Costa del Sol

The de facto couple is a concept recognised in Spain, as is the concept of Civil Union.

A Civil Union should be declared in front of a Notary. In the event of a dispute relating to two people who are in such a Union the court will apply the law under which the Union was established.

A de facto partnership must be duly registered in the partners' local registries. The rights of those couples vary, depending on the community where they are registered.

Any dispute relating to non-married partnerships requires careful legal consideration and advice, as both personal circumstances and the rules (depending on the community you're registered with) vary.

Adoption on the Costa del Sol

Formal adoption is possible in Spain, but most Spanish people adopt children from other countries.

Couples or single people who want to adopt must submit an application to the Child Protective Services of their Autonomous Community (in this case, Andalucia). They will be put on a waiting list for assessment.

The assessment process is carried out through a series of interviews, home visits, documentation and presentations. The authorities will study these reports until they decide on the suitability of applicants. If an applicant is decided to be suitable for adoption, they will be put on a selection list. The placement of a child will be proposed.

A judge, after evaluation of the documentation, issues an order of adoption and, finally, registration will take place in the Civil Registry.

The adoptive parents must meet the following requirements:

  1. At least one of them must be older than 25 years of age

  2. They must have submitted an application in the Register of Adoptions

  3. Meet minimum standards to meet a child's economic, sociological and educational needs

  4. In the would-be adopters are spouses or people who habitually live together, there needs to be a stable and positive relationship. (Minimum coexistence of two years is valued).

  5. That there are appropriate attitudes and motivations for adoption

  6. That these attitudes are shared by both parties, in the case of spouses or domestic partners

  7. That there is basic skill for a child's education (the applicants are literate and numerate)

Adoption by same-sex couples has been allowed since 2005, when the marriage law that eliminated discrimination between heterosexual couples and same-sex couples entered into force.

Currently, in private international law, adoption is regulated by Law 54 / 2007. (Read more here.

The process of adoption typically takes about 12-18 months.

Surrogacy in Spain

Spanish law does not allow surrogacy.

Child abuse on the Costa del Sol

The Spanish are very intolerant of child abuse, whether physical or mental.

There is a readiness to report any suspicion of abuse to the Department of Social Services and a readiness by the Department of Social Services to take strong and swift action to protect the interests of the child. Every doctor, nurse, teacher or other professional person is under a legal obligation to report any suspicion of child abuse.

Having said that, in Spain minor physical chastisement of a child is not considered to be child abuse.

If an allegation of child abuse is substantiated by the Department of Social Services the person concerned can accept their findings or appeal to the court.

If they accept the findings or if the court finds that there was child abuse the consequences will depend upon the nature and seriousness of the abuse. The norm is a variation of the process of three strikes and you are out.

You will be warned as to your conduct and subject to limited supervision by the department of social services for a period of time, or the child will be subject to a supervision order and will be closely supervised by the Department of Social Services for as long as they feel necessary.

If an unacceptable state of affairs continues, or the nature of neglect or abuse is very serious, the child will almost certainly be removed from the parents and put into the care of state. One of the most impressive things about the Spanish system of dealing with child abuse is the rapidity with which effective action is taken.

Child abduction to the Costa del Sol

See our Guide about Child Abduction to the Costa del Sol.

Separation on the Costa del Sol

What is separation?

Separation is where two people who have formerly been married or living together "as man and wife" decide to go their separate ways but without (in the case of a married couple) divorcing and so bringing the marriage to an end.

Despite the expression "living together as man and wife" the same arrangements apply in the case of same sex couples.

Married people

Married people who are separating are subject to exactly the same rules and go through the same procedure as married people who are divorcing (see below). The only difference is that, at the end of the process, the marriage is not terminated.

This arrangement is most often used by people whose religious belief does not permit divorce. In Spain, it used to be necessary to be separated for one year before applying for divorce, but that rule is no longer applicable.

Unmarried people

Unmarried people who are separating are also subject to the same rules and go through the same process as people who are divorcing (see below).

However, unlike many married couples, unmarried couples do not have any rights to the assets of the other, and things like the amount of time they lived together, or if one of them dedicated time to the couple or the children are not taken into account.

Divorce in Spain

Divorce has been recognized in Spain since 1932. It was abolished by the dictator Franco, but has been recognized again since 1981.

See our Guide to Divorce on the Costa del Sol for more details.

Annulment (nullity) in Spain

Annulment of marriage - declaring that it was never valid in the first place - is a very rare occurrence in Spain, though it is possible under certain circumstances.

The process and the rules applied are almost the same as for a divorce. See our Guide to Divorce on the Costa del Sol for more details.

Property and financial arrangements associated with divorce and separation on the Costa del Sol

Spain has one of the most straightforward approaches to divorce (including separation and annulment) in the world.

The whole process is dealt with within the context that the most important consideration is the welfare of any children. They must be adequately provided for before any thought is given to the position of the parents.

Subject to that provision - which will often mean the former home being retained by the parent with custody of the children - any excess assets are, by default, divided equally between the parties when the couple is married under the joint assets regime.

The court has the power to make ongoing financial provision for the other. Again, the default position is that - after the needs of the children have been provided for - the income of the parties should be redistributed so that it is split equally between them. Usually there will be a tapering arrangement so that the provision reduces over a period of time. That period will depend primarily upon the ages of any children and the arrangements made for looking after them.

Arrangements for children during divorce or separation on the Costa del Sol

As already mentioned, the children are treated as the most important aspect of any divorce or separation.

As soon as the children are felt to have the mental capacity to understand what is going on and to express a valid opinion as to their preference, that preference will be taken into account and carry considerable weight.

In the case of young children (under the age of five) there is a de facto (but not legally binding) presumption that they will be better off looked after by their mother.

Paternity on the Costa del Sol

If a person alleges that a child is the child (or not the child) of a particular person, the issue shall be determined conclusively by DNA testing. The court has the right to order the parties to undergo that testing.

Expats' Tips

Have you had experience with any of the facets of Family Law? Tell us about it and share your story by emailing office@guides.global.

Conclusion

We weren't kidding when we said that Family Law is a wide-ranging area. Most of it is very complicated and depends heavily on circumstance. That's why it's important to see a specialist lawyer.

Other guides of interest

 Description Link 
Child Abduction to the Costa del Sol
This guide covers what to do if your child or children (usually under 18, unless the child has emancipated) are abducted - taken to Spain without your consent and without legal authority.
Child Abduction in the Costa del Sol
Divorce on the Costa del Sol
This guide covers the question of whether your existing divorce (or proposed divorce) will be recognized in Spain and gives details of how you can obtain divorce on the Costa del Sol, whether as a resident or as a national.
divorce in the Costa del Sol
Marriage on the Costa del Sol
This guide covers the steps needed when getting married in Spain and some of the cultural and practical considerations that need to be taken into account when doing so.
Marriage in the Costa del Sol

Readers' Comments

 

Further information?

We hope you have found this guide useful. If you need any further help, please contact us.

Manzanares Abogados S.L.

1 June 2016


 

This guide was co-authored by John Howell (Email: John.Howell@Guides.Global or John@jhco.org. Web: www.jhco.org or www.Guides.Global)

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