Ending a relationship is hard. Divorce doesn’t have to be. Even if you’re only thinking about divorce at this stage, it pays to know what’s involved and understand your legal position. Get discreet divorce advice from English family law specialists Woolley & Co, Solicitors. Call us today on +44 1789 330310.
If you are originally from England or Wales but now live in Spain you may be able to divorce in Spain or England. Many expats do not realise that even when living abroad, divorce in Spain is not their only option, and using the English courts is often quicker, cheaper and less complicated than navigating Spanish divorce law.
International divorce specialists
Woolley & Co, Solicitors are experienced expat divorce solicitors based in the UK but handling cases across Europe, including for those going through a divorce in Spain. As specialists in international proceedings, we are normally able to manage your whole case without you needing to return to the UK. If you require assistance understanding divorce law in Spain or how it compares with English law, our team can guide you through every step.
Discretion guaranteed
For confidential legal advice from an approachable, trusted expat divorce lawyer call Woolley & Co, Solicitors on +44 1789 330310. Or complete our online form with your details and we’ll call you.
An expats guide to divorcing from Spain
If you are an English expat living in Spain, you may be able to apply for a divorce in England and there are often significant benefits in doing so. Many expats assume that divorce in Spain must take place locally, but this is not always the case. This guide outlines what’s involved in an English divorce from Spain and highlights the important points to consider before deciding where to divorce.
Your choice on where to divorce
Many English expats living in Spain are entitled to divorce either in Spain, under Spanish divorce law, or in England (or Wales) under English law. The first step is to establish whether you have this choice. In the following circumstances you will normally be eligible to divorce through the English Courts:
- You have been married for more than 1 year.
- You, your spouse of both of you have a legal connection with England or Wales, regardless of whether you have lived out of the country for many years.
Establishing a legal connection
To understand whether you have the right to use the English courts rather than proceeding with a divorce in Spain, the key issues to determine are domicile and habitual residence.
Domicile is a legal concept used to link an individual with a particular legal system. It takes into account where you were born and brought up and your continuing connections with England/Wales as well as where you are living now and your intentions for the future. Having property, savings or pensions in England or Wales is one of the measures used to establish domicile. This can be crucial when weighing whether to use English courts or pursue divorce law in Spain.
Establishing which court system you will use is important and you should ideally take advice from both an English divorce lawyer and a Spanish divorce lawyer to understand which is the best option for you.
Sometimes there can be a ‘race’ to file for divorce because either England or Spain is viewed as more beneficial to one party over the other in a particular case. Spain (like most EU states) will generally give priority to the first proceedings issued (although there may be exceptions) whereas England will look at which country has the ‘closest connection’ with the family. If a dispute is likely, take advice early—especially if you intend not to divorce in Spain and instead file in England.
Why divorce through the English Courts?
Using the English legal system is often much quicker, cheaper and more effective than attempting to use the local jurisdiction and in some instances expats are prevented from applying for divorce in the country to which they have moved. In Spain the process of divorce is relatively straightforward compared to some parts of the world. While divorce in Spain is relatively straightforward, the proceedings are conducted in Spanish and involve the bureaucratic Spanish court system. If you need legal advice locally, you must appoint a Spanish divorce lawyer as English lawyers are not qualified in the Spanish legal system.
There are some notable differences in process and procedure between the Spanish system and the English one, including differences of timing which might have a significant impact on any financial settlement. More importantly there can be considerable variance between the approach of a Spanish court and an English court to the division of the assets of a marriage which could mean that there is a significant advantage to using one country’s system over the other. An English divorce is a fairly simple process provided there is not a dispute about where the divorce should take place.
You do not need your partner’s consent to divorce. The divorce itself is a paper exercise, with the obvious advantage that all paperwork is in English. Most divorces in England take between 7 – 10 months to complete. This timeframe may increase if the other party to the divorce is slow to respond or there are difficulties tracing them for example. Cases involving expats—including those who might otherwise consider a divorce in Spain—generally proceed smoothly.
Children in divorce
Disputes about children are dealt with in the country where the children are ‘habitually resident’ which could be Spain or England depending on what happens on separation. The English court can make orders about when a child spends time with each parent as well as make decisions about specific issues or steps which a parent must not take in relation to the children.
If agreement cannot be reached, a court order is required to relocate with a child to another country. The child’s welfare is paramount and there is a checklist of factors the court must refer to when making decisions.
Divorce isn’t the end
One very important point to understand is that under English law whilst the divorce is the legal ending of a marriage the divorce itself does not automatically sever any financial ties with your spouse.
All expat divorce clients that we advise are encouraged to come to an agreement about their joint finances, either by themselves or with our help, and have this agreement drawn up into a legally binding document. This is the only sure way to ensure that in the future your ex can’t make a financial claim. Under English law the Family Procedure Rules set out how this agreement should be reached and encourages full and frank disclosure of all assets.
Both parties are required to provide details so that a clear picture of the total pot of matrimonial assets can be established. If your spouse is reluctant to provide that information for any reason, the court has the power to order them to do so.
Under English law there is the possibility of applying for spousal maintenance in circumstances where you can show that you are unable to support yourself or can show significant disparity in future lifestyle between yourself and your spouse based on your future income earning potential. The system in Spain is different—under Spanish divorce law, the party claiming an asset exists must prove it, which can be difficult when assets are located abroad.
Limitations of the English courts
There are few limitations on what can be ordered through the English court system, but it can be difficult to enforce such orders in relation to foreign owned property and other assets. This is a highly complex and procedural area of the law and advice should be sought from the outset to determine other ways in which such property can be dealt with, such as offsetting a party’s interest in other assets of the marriage in order that such property can be retained.
It is also possible to register orders made in the English courts in the local Spanish court for enforcement against assets held in Spain. That said if an agreement can be reached between the parties as to a sale or transfer of that foreign property, the Court here will approve it.
Getting legal advice
A number of our lawyers at Woolley & Co have trained to offer divorce advice to British expats. You can book a free telephone appointment with an English lawyer by calling (+44) 1789 330310. We’re happy to speak via Zoom or Microsoft Teams. You can also watch our videos on YouTube.
A note about Scottish Law
If you or your spouse consider yourselves Scottish or have strong ties to Scotland, you may need advice on Scottish divorce law. Even so, you may still avoid a divorce in Spain and divorce in England in some circumstances. Please contact us to discuss your situation with one of our experienced expat divorce lawyers.