Divorce law extremadura


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Divorce law extremadura

  1. 1. Regional Divorce Law in Spain: Extremadura
  2. 2. If you are thinking about getting divorced in Spain please make sure to view: 10 Must Know Facts For Anyone Planning To Divorce in Spain 2
  3. 3. Which law Applies?If a couple who are both English and were married inEngland but live in Extremadura, which law is applied to theirdivorce proceedings?How about a couple who possess different nationalities, bothhaving been resident in Extremadura? 3
  4. 4. Which law Applies?The Spanish Civil Code (Art. 107) provides that the lawsapplicable to divorce proceedings in Spain shall be:1) The law of the country of which the spouses share acommon nationality 4
  5. 5. Which law Applies?2) If there is not a common nationality, the law of the land inwhich they are both normally resident3) If the spouses are not normally resident in the samecountry then the last country in which they were resident 5
  6. 6. Which law Applies?So, should a couple married in England apply for divorceproceedings in Spain then the Spanish court shall apply thelaw applicable in England.However, the same couple could request that Spanish law beapplied if they are both normally resident in Spain. 6
  7. 7. Which law Applies?Spanish law is also applied in the case of a mixed nationalitymarriage where both spouses are ordinarily resident inSpain.Given the number of people in this situation it is thereforeimportant to consider the application of Spanish divorce laws. 7
  8. 8. Spanish Divorce LawsIn order to determine the Spanish legal rules that governmatters such as the distribution of marital assets upon adivorce it is first necessary to ascertain the system ofeconomic relations marriage that the couple have agreed to. 8
  9. 9. Spanish Divorce LawsThe two most important systems of marriage are:1) Sociedad de Gananciales2) Separación de BienesBriefly, these can be defined as follows: 9
  10. 10. Spanish Divorce LawsSociedad de GanancialesUpon marriage a union of assets is formed whereby allfuture assets acquired during the course of the marriagepertains to this union and which upon dissolution of themarriage should be shared between the spouses. 10
  11. 11. Spanish Divorce LawsSeparación de BienesBoth of the spouses retain all rights to assets acquired duringthe marriage. Any assets that are bought with common fundsare owned in the proportion in which the spouses contributedto the purchase of the asset. 11
  12. 12. Spanish Divorce LawsSeparación de BienesUpon dissolution of the marriage it is necessary to determineownership of assets. 12
  13. 13. Spanish Divorce LawsBy Spanish Civil Code (Article 1315) the system of marriagethat applies is determined:1) By the couple themselves in a formal declaration before anotary (capitulaciones matrimoniales) 13
  14. 14. Spanish Divorce Laws2) By the local prevailing law enacted by the regionalparliament3) In the absence of local legislation, by the Spanish CivilCode 14
  15. 15. Spanish Divorce LawsSo, if a married couple did not make a formal declarationstating a preference for one particular system (typically thecase), we then must analyse any regional laws that mayestablish the system of marriage to prevail in that region. 15
  16. 16. Marriage Classification in ExtremaduraAn old doctrine known as Fuero del Baylío applies incertain districts of Extremadura and applies a system ofsharing of all assets brought to the marriage as well asacquired during the marriage. 16
  17. 17. Marriage Classification in ExtremaduraHowever, this doctrine is only applicable in certaintowns, between certain couples in certain specificcircumstances.Therefore, in the absence of any other specific regional lawsand other than in the most limited of situations specifiedabove we must have recourse to the Spanish Civil Code. 17
  18. 18. Marriage Classification in ExtremaduraThe Spanish Civil Code establishes as standard the systemof sociedad de gananciales which is therefore theapplicable system in Extremadura. 18
  19. 19. Division of Marital Assets upon a Divorce in ExtremaduraThe procedure for the division of assets upon the ending of amarriage that is classified as a sociedad de gananciales isgoverned by the Spanish Civil Code. For more information goto: Division of Assets 19
  20. 20. Child Custody in ExtremaduraTypically, following a divorce any children will be placed inthe custody of one of the parents – almost always theirmother. 20
  21. 21. Child Custody in ExtremaduraHowever, another possibility is the shared custody of childrenwhich may be defined as:‘ the legal situation in which, following a separation ordivorce, both parents have legal custody of the childrenequally, in terms of the conditions and rights that areconferred in this regard.’ 21
  22. 22. Child Custody in ExtremaduraWhile contemplated in the legislation reforming much offamily law in Spain (Law 15/2005) the concept of jointcustody has yet to really take off in Spain.However, this may be changing with new laws beingintroduced in a number of autonomous communities in Spain 22
  23. 23. Child Custody in ExtremaduraExtremadura is not one of the regions that has introducedchanges to the law and as a result shared custody of thechildren of a marriage following a divorce may only occurwhere: 23
  24. 24. Child Custody in Extremadura1) It is expressly agreed to by both parents, or2) The judge may award shared custody but only inexceptional circumstances where the protection of the childrequires it and the District Attorney provides a positive report. 24
  25. 25. Child Custody in ExtremaduraHowever, this rule may now be in jeopardy due to a decisionof the Spanish Supreme Court in July 2011 which stated thatshared custody‘ should not be applied only as anexceptional measure‘ but rather should be considered asthe most normal. 25
  26. 26. Other Important Aspects of Divorce LawIn the absence of regional laws determining suchmatters, the Civil Code governs when considering issuesrelated to divorce and separation such as inheritances andcommon liability for personal bankruptcy of one of thespouses. 26
  27. 27. Other Important Aspects of Divorce LawOther State laws also have a national reach and accordinglymay need to be taken into account in Extremaduradepending on the particular situation.For example, visitation rights of grandparents and alsorelevant to many is the family law applicable when a coupleare not married. 27
  28. 28. For details of the services available from localEnglish-speaking family law experts in Extremadura, go to: Family Lawyers in Extremadura 28