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The divorce rate in Spain is comparable to that of the United States, if not higher. In fact, Time Magazine dubbed Spain “Splitsville” in a 2008 article. One of the most notable distinctions in Spain’s divorce law is its uniformed regulation by the European Union (“EU”). The bulk of EU divorce rules are contained in Regulation No 2201/2003, commonly known as the Brussels IIa Regulation. This regulation concerns jurisdiction of family law matters, and the recognition and enforcement of judgments in matrimonial matters and custody matters. The EU adopted Regulation No. 1259/2010 — also known as the Rome III Regulation — in 2010 on the law applicable to divorce and legal separation.
These regulations contain rules for where spouses should file an application for divorce, and allow for a divorce pronounced in one EU country to be properly recognized by another EU country. While the United States has similar rules, there are other distinctions between divorce laws in Spain and those customary of the United States. Here are some areas in which the Spanish divorce differently:
Types of Marriage
There are two possible types of marriage in Spain: sociedad de gananciales and separación de bienes. First, sociedad de gananciales is what we Americans would consider a typical, traditional marriage. In this type of matrimonial arrangement, all property, assets, benefits, and goods derived by either spouse during the marriage are legally considered to belong to both spouses equally, and which will be divided equally upon a divorce. Such assets include either spouse’s real property, benefits of any businesses, and salary. Still, even within a sociedad de gananciales marriage, there are certain assets that are considered private and would not be seen as divisible among the spouses in the event of a divorce. For example, an inheritance left to one spouse, or any assets obtained prior to the marriage and are never comingled with matrimonial assets.
Second, separación de bienes denotes an intention of the spouses to maintain a separation in the ownership of assets throughout the relationship. Any assets accumulated in this type of marriage are considered to belong to one spouse in the proportion in which his/her funds contributed to the acquisition. This sort of legal prearrangement can be planned by American couples in a prenuptial agreement. Spanish law does not have a strict equivalent to pre- or postnuptial agreements. That is not to say, however, that prenuptial agreements are not enforceable in Spain. Agreements providing for the dissolution of a marriage are becoming more and more common in Spain with select communities passing the necessary laws, which give the parties considerable freedom as to potential resolutions in the event of divorce. These nuptial agreements or capitulaciones matrimoniales are binding unless they are detrimental to the children or seriously damaging to one spouse.
Under separación de bienes, each spouse owns what he/she brought into the marriage and anything acquired during the marriage either by inheritance, purchase, or gift. Either spouse may dispose of such assets freely. If the couple purchases an asset, e.g., a house, and the husband pays 75% of the cost while the wife contributes the remaining 25%, then each spouse would be entitled to the percentage of the value based upon the fraction they contributed to the purchase price.
Value of Contribution of Domestic Labor
The separación de bienes system assigns ownership of assets to individual spouses depending on the contributions of each spouse. In Spain, domestic labor is considered quantifiable and can be used to assess contribution towards marital assets. The contributions of a spouse who tended to the home throughout the marriage are considered contributions for which that spouse should be compensated. According to the Código Civil, housework shall be computed as a contribution to household expenses and shall entitle the spouse to obtain a compensation, to be set by the Judge in the absence of an agreement, upon termination of the separation regime. Art. 1438, Cod. Civ.
In the United States, a judge can order a type of reimbursement alimony in certain states to repay one spouse for the expenses of the other. The most typical cases of reimbursement alimony are when one spouse supported the other as he/she completed a training program or internship, or obtained an education. If an American wife maintained the household and cared for the family while her husband pursued a professional degree, she may be entitled to reimbursement for her domestic labor, especially if she also expected to ultimately benefit from the degree.
While American judges consider each spouse’s various contributions to the marriage and what one spouse contributed to the attainment of the other’s education or career, these factors are merely some of many to be considered, and the judge will still exercise his discretion based on those many factors. Spanish law has a narrower interpretation of what the at-home spouse is owed, i.e., the financial value of the contributions made by a spouse who stays at home to raise the children and complete domestic chores.
American courts are more generous to the lower-earning spouse in divorce proceedings. This might seem like common sense. The main objectives are to ensure that the spouse with fewer assets can come to support him/herself, and to allow him/her to maintain the reasonable standard of living that existed during the marriage. On the other hand, the main objective in Spain is to return the divorcing parties to the positions in which they were prior to getting married. According to Spanish law, courts will make considerations based on the original positions of the spouses.
There is generally no minimum amount of time a couple must be married in the United States before a spouse can file for divorce (depending on the state and case). In some states, you could easily file for divorce the day after you say, “I do.” In Spain, there must be a minimum term of three months from the date of the marriage to the filing for divorce, except in exceptional cases.
The lapse of this three-month period is not required to file the claim when there is evidence of the existence of risk to the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the spouse filing the claim or the children in common or any member of the marriage. Art. 81, Cod. Civ.
Which country has it better?