Family Law in Spain

Updated on Thursday 27th May 2021

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The Spanish Civil Code includes the main elements related to family legislation that are important for local citizens, as well as for foreign persons who are residents in Spain or who have relatives in this country. At the same time, the family legislation prescribes the rights and obligations such persons have when getting married in Spain. Family Law in Spain concerns legal issues such as marriage, divorce, separation, matrimonial property regime, custody of children and other similar matters.

Foreign entrepreneurs who perform businesses in Spain and live there for a certain period of time together with their families may encounter different legal issues concerning their families, so they may need the legal advice of a Spanish lawyer. A local attorney will explain the legal procedures applicable in the case of marriage, divorce or separation and the Spanish regulations that must be followed.

Our law firm in Spain can offer information for special cases of divorce between a Spanish citizen and a foreign person, who is a citizen of a member state of the European Union (EU) or who resides outside the EU zone. For any other information concerning legal matters that are regulated under the Family Law in Spain, please request in-depth advice from our team of Spanish lawyers.

Divorce procedure in Spain

One of the most common situations that falls under the regulations of the Family Law in Spain is the divorce, a procedure which can be started by a spouse or by both. A divorce procedure in Spain can also be started at the request of only one of the parties, regardless if the other party agrees or not with the spouse’s decision.

In Spain, a couple is entitled to request the divorce or the judicial separation only after three months have passed since they got married. However, there can be exemptions in this sense, as the party wishing to file for divorce may do so prior to the three months limit, in the extraordinary situations, such as when the petitioner considers that she/he or the children are in danger.

Spain can be chosen as a country for divorce by foreign citizens who live here and have a residence in this country. The legal issues related to children will be decided by a judge, based on the local legislation concerning child custody. Our team of lawyers in Spain may provide in-depth assistance on the regulations available in this case.

Also, it is important to know that the divorce procedure may last up to six months (the average period of time) since the party (or parties) has (have) filed for divorce. However, this period can be extended up to one year, depending on the region in which the divorce procedure is held. Persons who are currently living in Spain should know that the country’s largest cities have specialised family courts, which handle legal matters prescribed by the family legislation.

Children’s custody in Spain

After the issue of custody of children is solved, the both ex-spouses will have the responsibility regarding the future of their children, especially in matters concerning health and education, in which the two parents have equal responsibilities and rights. One of the spouses can receive a maintenance in Spain only if he/she can prove that is economically disadvantaged by the divorce.

This is usually available in the case in which one of the spouses gave up his/her career in order to take care of the children, while the other spouse earned a high salary and thus, he/she can pay a monthly allowance . Such matters are regulated under the Family Law in Spain and the local courts will enforce these procedures in accordance with the provisions of the law.

According to the Spanish legislation on the matter, the custody of the child (or children) can be granted to either parent. However, in practice, most of the courts will provide custody to the child’s mother (approximately in 95% of the cases). Depending on the child’s age (toddler, infant), the custody may be granted to the father as long as there is sufficient proof that the mother is incapacitated to take care of the children.

The Family Law in Spain regulates numerous aspects concerning the custody of children in the event of a divorce. As a general rule, parents should be able to create a parental plan, in which they will present the manner in which the child will be taken care of by both parties, which responsibility is attributed to a parent and so on.

In the case that the parent can’t reach an agreement, mediation can be an option in order to create a suitable environment so that the parents will reach a conclusion that is suitable for the needs of both parents in the relation with their children. The parental plan will, inevitably, contain specific details regarding the visiting rights of the parent who will not receive the custody.

The agreement will then be ratified by the judge who is hearing the case, and its provisions should be applied as established in the court by both parents after the dissolution of the marriage and after the custody of the children was established; persons who are dealing with this issue are invited to address to our team of Spanish lawyers for legal advice and legal representation.

Please mind that the court will generally establish the child custody based on specific aspects; although numerous factors will be taken into consideration, one must know that certain aspects are of high importance for the Spanish courts when establishing the custody of children, as follows:

in the case in which the splitting couple has more than one children, the decision regarding custody will be taken based on the fact that the children should not be separated – meaning that if a couple has at least two children, both of them will stay with one parent;
custody will also be decided based on the emotional needs of the children, not only financial;
another factor of importance is the closeness of the children with other close family members (such as the grandparents);
the ability of the parents to take care of the children (all aspects that are included here) will also be important;
the court will establish the custody based on whether a parent has any psychological issues or different types of addictions.

However, it is also important to know that the Family Law in Spain recognizes joint custody as well, in which both parents have the same level of rights, even after the divorce is finalized. In practice, this means that the child can spend his or her time in the homes of both parents following an alternate program, created and agreed upon by both parents. If you need more details regarding joint custody, we invite you to request information on the applicable legislation from our law firm in Spain.

What are the trends on getting married in Spain?

Compared to 20-30 years ago, Spanish citizens are less and less inclined to get married in Spain. More importantly, the divorce rate is high, especially amongst persons who can afford to live a separate life after being married for several years (emotional maturity, financial freedom and numerous other aspects are taken into consideration).

In Spain, the right to divorce was only obtained in 1981, as the country is, overall, represented by a population with a Catholic faith and upbringing, in which the divorce is still seen as a step married couple should not go through. Although the marriage rate in Spain declined compared to several decades ago, the number of marriages is, more or less, at the same level, if we refer to the last 10 years, as follows:

the lowest value on the number of marriages (taking into consideration only heteronormative marriages) was registered in 2013, when there were only 153,375 marriages;
in 2010, when the marriage rate was in a continuous decline since 2006, Spanish authorities registered 167,247 marriages;
after the lowest point registered in 2013, the highest number of marriages was registered few years later, in 2016, when there were 171,023 marriages;
the latest annual values, registered for 2019, show a small decline in the number of marriages, of 160,470 events;
according to the National Institute of Statistics, in the first 6 months of 2020, the total number of marriages (both same-sex marriages and opposite sex marriages) accounted for 28,327 events.

If you need more information about the Family Law in Spain and your rights and duties, you may contact our law firm in Spain. Our Spanish lawyers will represent you in specific matters, such as divorce or marriage procedures or the division of assets amongst two former spouses.