Divorce in Spain: Frequently Asked Questions

How long does a divorce take in Spain? Do both spouses need to agree? What happens to the children, the family home, the mortgage or matrimonial property? We answer some of the questions most frequently asked about divorce under Spanish law.

Every divorce involves different family, financial and property circumstances. The following answers provide general guidance on some of the questions that commonly arise before, during and after divorce proceedings in Spain.

At EBAN Abogados, we assess each case individually to determine the available options, the realistic prospects of agreement and, where necessary, the appropriate litigation strategy.

Do both spouses have to agree to the divorce?

No. As a general rule, the consent of both spouses is not required to obtain a divorce in Spain.

If both spouses agree, the divorce can proceed by mutual agreement. If one spouse does not wish to divorce, or if the spouses disagree about its consequences, the other spouse may commence contested divorce proceedings.

A lack of agreement may prevent the divorce from proceeding by mutual consent, but it does not allow one spouse to require the other to remain married indefinitely.

More information about agreed and contested divorce in Spain →

Do I need to prove grounds for divorce?

It is not necessary to prove adultery, abandonment, marital misconduct or another particular cause for the breakdown of the marriage in order to obtain a divorce in Spain.

The purpose of divorce proceedings is not to establish which spouse was responsible for the failure of the marriage.

This does not mean that conduct is never legally relevant. Particular facts may be important when determining issues concerning children, property or other consequences of the breakdown, but proof of fault is not generally required in order to obtain the divorce itself.

Do I need to separate before getting divorced?

No. A prior judicial separation is not generally required before applying for divorce in Spain.

Separation and divorce are different legal institutions. Separation affects the spouses’ matrimonial relationship without dissolving the marriage itself, whereas divorce dissolves the marital bond.

Where the decision is to bring the marriage definitively to an end, divorce can therefore be sought directly, provided the applicable legal requirements are satisfied.

How long does a divorce take in Spain?

There is no single period applicable to every divorce.

An agreed divorce will generally involve a simpler and faster procedure than a contested divorce, but the actual duration depends on the applicable procedure, the competent court or authority, whether children are involved and the circumstances of the particular case.

Contested proceedings may take longer, particularly where evidence is required concerning children, financial circumstances or other disputed matters.

For this reason, rather than providing a generic estimate that may be unrealistic, it is preferable to assess the particular circumstances of the case.

Do we need separate lawyers?

In an agreed divorce, it may be possible for the spouses to proceed with common legal representation where there is a genuine agreement between them.

However, each spouse should properly understand the legal and financial consequences of the proposed agreement. Where significant conflicting interests exist, there are substantial financial issues or the spouses take different positions concerning children or other measures, separate legal advice may be appropriate.

In contested proceedings, the spouses take opposing procedural positions and each requires the corresponding legal representation.

Can you get divorced before a notary in Spain?

In certain agreed divorces, where the statutory requirements are satisfied, separation or divorce may be formalised by means of a public deed before a Spanish notary.

This procedure is not available in every case. In particular, the existence of non-emancipated minor children, or children in relation to whom judicial support measures attributed to their parents have been established, may require the divorce to proceed through the courts in accordance with Spanish law.

Before choosing the notarial route, it is therefore necessary to establish whether the case satisfies the relevant requirements and to prepare the agreement regulating the consequences of the divorce.

What happens if we have minor children?

Where there are minor children, the divorce must establish the necessary arrangements concerning them.

Depending on the circumstances, it may be necessary to regulate custody, the time the children spend with each parent, communications, child maintenance, holidays and other important aspects of their care.

The fundamental consideration when determining these measures is the best interests of the child.

Divorce changes the marital relationship between the parents, but it does not terminate their responsibilities towards their children.

How is child custody determined?

There is no single custody arrangement automatically applicable to every family.

The circumstances of the children and both parents must be considered, together with the existing family organisation, each parent’s availability, the children’s needs and other relevant factors.

Parents may agree on arrangements they consider appropriate, subject to the corresponding legal scrutiny where required. If no agreement can be reached, the court will determine the appropriate measures with the children’s best interests as the primary consideration.

How is child maintenance determined?

There is no universal amount of child maintenance applicable to every divorce.

The needs of the children and the financial resources of the parents must be considered, together with the other circumstances relevant to the particular family.

The divorce agreement or court decision should establish the corresponding contribution. It is also advisable to regulate matters such as future adjustments and the treatment of extraordinary expenses.

A subsequent significant change in circumstances may justify seeking a modification of the maintenance arrangements through the appropriate procedure.

Who can remain in the family home?

The right to use the family home and ownership of the property are separate legal issues.

The property may belong to both spouses or to only one of them, while its use may nevertheless be temporarily allocated according to the family circumstances and the criteria established under Spanish law.

Where children are involved, their circumstances may be particularly relevant.

Accordingly, granting one spouse the right to use the family home does not transfer ownership of the property.

What happens to the mortgage after divorce?

Divorce does not by itself alter obligations previously assumed towards the bank.

Where both spouses entered into a mortgage loan, an agreement between them that one spouse will make the future payments does not automatically release the other from liability towards the lender.

It is therefore necessary to distinguish between ownership of the property, the right to use the home and liability under the mortgage loan.

If the intention is to release one borrower from the loan, the corresponding financial arrangement and the position of the lender must be considered.

Is spousal maintenance always payable after divorce?

No. Spousal maintenance or compensatory support is not an automatic consequence of every divorce in Spain.

Whether it may be awarded depends on the requirements established under Spanish law and the personal and financial circumstances of the spouses.

Where appropriate, its amount, duration or form of payment must be determined according to the circumstances of the case.

Subsequent developments may also make it necessary to consider its modification or termination.

Is matrimonial property automatically divided on divorce?

Not necessarily.

Divorce dissolves the marriage, but the division of matrimonial property may require additional legal operations depending on the matrimonial property regime and the assets involved.

The spouses may agree on particular property arrangements in connection with the divorce or complete the corresponding liquidation separately.

Consequently, obtaining a divorce and dividing the matrimonial estate are not necessarily the same legal operation.

What happens to the sociedad de gananciales after divorce?

Where the marriage is subject to the Spanish matrimonial property regime known as sociedad de gananciales, divorce results in the dissolution of that regime. This does not, however, mean that all matrimonial assets are automatically divided between the former spouses.

It may still be necessary to prepare an inventory, determine assets and liabilities, establish which property is common or separate, value the matrimonial estate and make the corresponding allocations.

The liquidation can be completed by agreement or, where disputes remain, through the corresponding court proceedings.

More information about the division of matrimonial property in Spain →

What if one spouse lives abroad?

An international element does not necessarily prevent divorce proceedings from being brought in Spain, but additional legal questions must be considered before proceedings begin.

It may be necessary to determine which courts have jurisdiction and which law is applicable, as well as dealing with service of documents abroad, foreign documentation or the recognition of judgments.

Where children live in another country, assets are located outside Spain or the spouses have different nationalities, the international aspects of the case should be analysed specifically before proceedings are commenced.

As a multidisciplinary firm with an international practice, EBAN Abogados can address the different legal issues arising in cross-border divorces within a coordinated strategy.

Can divorce measures be changed later?

Yes. Where sufficiently significant changes in circumstances subsequently occur, it may be possible to seek a modification of the existing divorce measures.

Depending on the case, this may concern child custody, parenting arrangements, maintenance, spousal support, use of the family home or other measures.

A change in circumstances does not, however, authorise either party simply to stop complying with the existing measures. While they remain legally in force, they must continue to be observed.

More information about modification of divorce measures in Spain →

What if my former spouse fails to comply with the judgment or agreement?

Where measures contained in a court judgment or an approved agreement are not complied with voluntarily, it may be necessary to seek their judicial enforcement.

The appropriate procedure will depend on the obligation that has not been complied with and the particular circumstances of the case.

It is important to distinguish between enforcement and modification. If a measure remains in force but is not being complied with, enforcement may be appropriate. If circumstances have changed and the existing measure is no longer appropriate, a modification may instead be required.

Speak to a Divorce Lawyer in Spain

The answers above necessarily provide general guidance. The appropriate solution will depend on the particular family, financial and property circumstances of each marriage.

At EBAN Abogados, we advise and represent clients in agreed and contested divorces, negotiation and preparation of divorce agreements, modification of measures, division of matrimonial property and enforcement proceedings.

As a multidisciplinary law firm, we can also address the Civil Law, real estate, corporate, tax and international issues arising in connection with marital breakdown.

Initial consultations are free of charge. Before undertaking any professional engagement, we assess the circumstances and the available legal alternatives.

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General information can provide useful guidance in a divorce. Important decisions, however, should be made with a clear understanding of the family’s particular circumstances and their legal consequences.

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Divorce in Spain · Matrimonial Law · Divorce Agreements · Matrimonial Property · Family Law