1. Regional Divorce Law in Spain:
Extremadura

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
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3. Which law Applies?
If a couple who are both English and were married in
England but live in Extremadura, which law is applied to their
divorce proceedings?
How about a couple who possess different nationalities, both
having been resident in Extremadura?
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4. Which law Applies?
The Spanish Civil Code (Art. 107) provides that the laws
applicable to divorce proceedings in Spain shall be:
1) The law of the country of which the spouses share a
common nationality
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5. Which law Applies?
2) If there is not a common nationality, the law of the land in
which they are both normally resident
3) If the spouses are not normally resident in the same
country then the last country in which they were resident
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6. Which law Applies?
So, should a couple married in England apply for divorce
proceedings in Spain then the Spanish court shall apply the
law applicable in England.
However, the same couple could request that Spanish law be
applied if they are both normally resident in Spain.
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7. Which law Applies?
Spanish law is also applied in the case of a mixed nationality
marriage where both spouses are ordinarily resident in
Spain.
Given the number of people in this situation it is therefore
important to consider the application of Spanish divorce laws.
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8. Spanish Divorce Laws
In order to determine the Spanish legal rules that govern
matters such as the distribution of marital assets upon a
divorce it is first necessary to ascertain the 'system' of
economic relations marriage that the couple have agreed to.
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9. Spanish Divorce Laws
The two most important 'systems' of marriage are:
1) Sociedad de Gananciales
2) Separación de Bienes
Briefly, these can be defined as follows:
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10. Spanish Divorce Laws
Sociedad de Gananciales
Upon marriage a 'union of assets' is formed whereby all
future assets acquired during the course of the marriage
pertains to this 'union' and which upon dissolution of the
marriage should be shared between the spouses.
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11. Spanish Divorce Laws
Separación de Bienes
Both of the spouses retain all rights to assets acquired during
the marriage. Any assets that are bought with common funds
are owned in the proportion in which the spouses contributed
to the purchase of the asset.
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12. Spanish Divorce Laws
Separación de Bienes
Upon dissolution of the marriage it is necessary to determine
ownership of assets.
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13. Spanish Divorce Laws
By Spanish Civil Code (Article 1315) the 'system' of marriage
that applies is determined:
1) By the couple themselves in a formal declaration before a
notary (capitulaciones matrimoniales)
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14. Spanish Divorce Laws
2) By the local prevailing law enacted by the regional
parliament
3) In the absence of local legislation, by the Spanish Civil
Code
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15. Spanish Divorce Laws
So, if a married couple did not make a formal declaration
stating a preference for one particular system (typically the
case), we then must analyse any regional laws that may
establish the 'system' of marriage to prevail in that region.
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16. Marriage Classification in Extremadura
An old doctrine known as 'Fuero del Baylío' applies in
certain districts of Extremadura and applies a system of
sharing of all assets brought to the marriage as well as
acquired during the marriage.
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17. Marriage Classification in Extremadura
However, this doctrine is only applicable in certain
towns, between certain couples in certain specific
circumstances.
Therefore, in the absence of any other specific regional laws
and other than in the most limited of situations specified
above we must have recourse to the Spanish Civil Code.
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18. Marriage Classification in Extremadura
The Spanish Civil Code establishes as standard the system
of 'sociedad de gananciales' which is therefore the
applicable system in Extremadura.
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19. Division of Marital Assets upon a Divorce in
Extremadura
The procedure for the division of assets upon the ending of a
marriage that is classified as a 'sociedad de gananciales' is
governed by the Spanish Civil Code. For more information go
to: Division of Assets
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20. Child Custody in Extremadura
Typically, following a divorce any children will be placed in
the custody of one of the parents – almost always their
mother.
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21. Child Custody in Extremadura
However, another possibility is the shared custody of children
which may be defined as:
‘ the legal situation in which, following a separation or
divorce, both parents have legal custody of the children
equally, in terms of the conditions and rights that are
conferred in this regard.’
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22. Child Custody in Extremadura
While contemplated in the legislation reforming much of
family law in Spain (Law 15/2005) the concept of joint
custody has yet to really take off in Spain.
However, this may be changing with new laws being
introduced in a number of autonomous communities in Spain
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23. Child Custody in Extremadura
Extremadura is not one of the regions that has introduced
changes to the law and as a result shared custody of the
children of a marriage following a divorce may only occur
where:
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24. Child Custody in Extremadura
1) It is expressly agreed to by both parents, or
2) The judge may award shared custody but only in
exceptional circumstances where the protection of the child
requires it and the District Attorney provides a positive report.
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25. Child Custody in Extremadura
However, this rule may now be in jeopardy due to a decision
of the Spanish Supreme Court in July 2011 which stated that
'shared custody‘ should not be applied only as an
'exceptional measure‘ but rather should be considered as
'the most normal'.
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26. Other Important Aspects of Divorce Law
In the absence of regional laws determining such
matters, the Civil Code governs when considering issues
related to divorce and separation such as inheritances and
common liability for personal bankruptcy of one of the
spouses.
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27. Other Important Aspects of Divorce Law
Other State laws also have a national reach and accordingly
may need to be taken into account in Extremadura
depending on the particular situation.
For example, visitation rights of grandparents and also
relevant to many is the family law applicable when a couple
are not married.
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28. For details of the services available from local
English-speaking family law experts in Extremadura,
go to:
Family Lawyers in Extremadura
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