What you need to know about

Divorce In Spain
Division of Marital Assets
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Legal Note - It should be remembered that the application of Spanish law varies considerably according to region and the circumstances of each individual and so this report can be treated as a general guide only and not as a substitute for qualified legal advice regarding any particular situation. Responsibility for acting on foot of this guide alone is entirely personal and no liability can be accepted by myAdvocate Spain. To get advice on your specific situation from expert legal practitioners in Spain please see the end of the guide.

Contentious Divorce Spain II Distribution of Marital Assets

In the previous report we looked at the importance that jurisdiction can play in international contentious divorce cases. Until the jurisdiction is decided it is not possible to continue the analysis as different laws apply different standards. For the purposes of the remainder of these reports we shall assume that Spanish law applies to the divorce petition. This is in fact the situation that most foreign nationals resident in Spain and married to Spanish nationals find themselves in. Also, a married couple who are foreign nationals resident in Spain may also request that a Spanish court applies Spanish law to their divorce application if they are habitually resident there. So far we have looked at the different 'types' of divorce express and contentious as well as the processes involved in both. At some point in the divorce process most people will consider how the divorce is going to have an impact on their lifestyle what will happen to the shared matrimonial home, how will any shared assets be split and of course there remains the issue of the custody of the children. So, in this report we shall look at how Spanish courts assess the legal issue of division of matrimonial assets. Specifically we will consider the following matters: The different 'types' of marriage in Spain Division of Assets in 'Separacin de Bienes' Division of Assets in ' Sociedad de gananciales' What are private assets? The matrimonial home Division of Assets in a Contentious Divorce

Separacin de Bienes, Sociedad de gananciales and Private Assets

Firstly we must determine under which 'regimen' the marriage has existed. In Spain, as we have seen in the previous report, there are two standard types or 'regimens' of marriage: 'separacin de bienes' and 'sociedad de gananciales'. Unless specifically chosen by way of public document signed in front of a notary, the type of marriage is determined by default and usually depends upon which autonomous community or region the couple are resident once married.

Division of Assets under 'Separacin de Bienes'

This, or a variation of it, is the default choice in Catalua, Aragn, Navarra, Balearic Islands and Basque Country. Where a couple are married under 'separacin de bienes' then each spouse owns that which they brought into the marriage i.e. owned before they were married as well as that which they have acquired during the marriage either by purchase, inheritance or gift and they may dispose freely of such goods and assets as they wish. So, where the couple purchase an asset, say a car, and one pays 75% of the cost while the other spouse pays the remaining 25% then upon divorce they would be entitled to a percentage of the value of the car based upon the percentage that they contributed to the purchase price. Where it is not possible to determine which of the spouses is the owner of a particular asset then it is split 50-50.

Division of Assets under 'Sociedad de gananciales'

This is the default position in the remaining Spanish regions and has the effect that all goods and assets acquired during the course of the marriage and which are not considered to be 'private' goods, are to be considered as belonging to both spouses equally. Example of goods and assets to be included in the matrimonial 'pot' would be: goods obtained by the work or industry of either spouse the benefits, income or rents obtained from other goods owned by either spouse even if considered to be 'private' goods goods obtained by using common funds whether for the use of one or other of the spouses business and companies founded during the course of the marriage where common funds 2

are used. If both private and common funds are used then the ownership is split in the ratio in which they were bought. Goods purchased initially with common funds that require installments to be paid later such as hire-purchase will be shared even if the installments are paid by one of the spouses.

So the income and pension of either spouse may be considered to belong to the matrimonial 'pot' and would be potentially divisible between both spouses upon a dissolution of the marriage. However, while all of the previously-mentioned assets are shared equally, those assets considered to be 'private' are not and may not be divided between both spouses upon a termination of the marriage.

Private Assets
Those assets which may not form part of a matrimonial 'pot' are known as 'private'. These would include the following goods: Those rights and assets possessed before the marriage (even where funds considered 'common' to both spouses is used to pay later installments unless the asset in question is the matrimonial home or fixtures and fittings) Those rights and assets obtained during the marriage without payment e.g. inheritances or gifts to a particular spouse Those rights and assets obtained through an exchange for private assets belonging to one of the spouses Rights that may only be transmitted via inheritance An award for personal damages or damages to private assets Clothes and personal belongings not of 'extraordinary' value Equipment necessary for the carrying-out of a trade or profession unless these are an integral part of a common enterprise Assets acquired with an initial payment by one of the spouses even though later installments are paid using common funds

The Matrimonial Home

The matrimonial home is a special type of asset that in certain circumstances may be treated differently from other assets. In the simple scenario where there are no children the spouses may agree in the 'Convenio' to sell the property and divide the proceeds equally. Where there are children it might be 3

decided that the mother of the children will stay in the family home with the children with a posterior sale and division of the proceeds. However, where there are children and no agreement between the spouses then the needs of the children become paramount when the court is considering how to deal with the main property asset. Process of Division of Assets in Contentious Divorces The division of the assets may form part of the 'Convenio' agreement where such agreement exists or judicially in the case of a contentious divorce where no agreement is reached. In the latter case the judge directs the spouses to meet on a specified date to draw-up an inventory of the matrimonial assets. Failure to appear at this meeting will be taken to mean agreement with the inventory proposed by the other spouse. Where there is disagreement as to whether an asset should be included in the inventory of matrimonial assets or as to it's value then this is set-aside to be resolved by the judge. Once the inventory is agreed or decided upon by the judge and the declaration ending the marriage is made then either of the spouses may request division of those assets which appear on the inventory. This request should be accompanied by a proposal as to how the assets should be divided taking into account the norms established by civil law in this regard. Having received the request to divide-up the assets both parties will receive an invitation to meet with a court official within 10 days so as to reach an agreement as to the distribution of the assets. As before, failure to attend will be deemed acceptance of the other spouse's proposal. A failure to agree will necessitate a ruling that an expert arbitrator be appointed to decide on the matter.

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