What you need to know about

Divorce In Spain
Alimony & Child Custody
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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 III Maintenance Payments & Child Custody

The most contentious issues of any divorce tend to relate to the issue of child custody and visitation rights as well as use of the matrimonial home and the requirement to pay maintenance or alimony to an ex-spouse. We shall look each of these issues and examine how they are normally treated by the courts in Spain by dividing them into the following categories: The Matrimonial Home Mortgage Payments and Utility Bills Maintenance Payments to ex-Spouses Child Custody, Visitation & Additional Rights Shared Custody Child Maintenance Family Bills

The Matrimonial Home

As with most jurisdictions, the courts in Spain, in cases of divorce, give priority to the needs of any children of the marriage. Given that the children will continue to require a home following the divorce of their parents this has a particular impact on the question of the use of the family home upon a divorce. As previously discussed, in the absence of an agreement between the spouses and where there are children involved and custody is awarded to one of the spouses then the court shall award use of the matrimonial home exclusively to that spouse. While this is the case regardless of whether the home is owned jointly or solely by the non-custodial spouse, it is important to reiterate that the assignation relates to the 'use of' and not to 'ownership of'. Where there are no children or the children have 'emancipated' and are no longer the parents' responsibility then the court may award use of the property to that spouse which, following the divorce, requires more protection. This is the case regardless of whether the property is rented or is owned by one or both of the spouses. 1

Given that the court order relates only to the use and not the ownership of the property, then liabilities for bills such as IBI (Spanish property tax) and other town hall charges remain the responsibility of the spouse who 'owns' the property. For this reason, a Convenio agreement between the spouses will normally reflect this and require the spouse who has the use of the property to repay these charges. If the spouses were tenants in a rented property then by virtue of Article 15 of the Law of Residential Leasing, the spouse who retains the use of the home by judicial order may do so even though they do not appear on the lease.

Mortgage Payments and Utility Bills

As stated if the marriage has produced children then the likelihood is that the use of the family home will be assigned to the mother being the most likely to gain custody of the children. If there is a mortgage to discharge on the property then that liability will continue after divorce. So, even though a spouse no longer has use of the property the mortgage must continue to be paid together with associated taxes, bills, rates etc. This continues to be the case at least until the maintenance of the children is longer the legal reponsibility of their parents. If the mortgage was the joint responsibility of both spouses then that continues to be the case after divorce. While selling the property would possibly in such circumstances be appealing to the spouse who is denied use of their own property, article 96 cdigo civil requires that to sell the property would require judicial approval or the consent of the spouse who has the use of the property. The utility bills are the responsibility of the spouse who enjoys the exclusive use of the property. However, it should be pointed out that in all of these matters, wherever an agreement is not reached between the spouses at the outset, the order of the court will depend upon a consideration of the incomes and expenses as well as the responsibilities of both spouses see Child Maintenance & Utility Bills later.

Maintenance Payments to ex-Spouses

Known in it's Spanish form as 'La pensin compensatoria' to distinguish it from any maintenance payments for children (la pensin alimenticia), alimony or spousal maintenance payments are less likely to be awarded. The basic rule is that it should only be awarded where one of the spouses is clearly disadvantaged economically as a result of the divorce. It would typically be awarded where one of the spouses owns a company or is a professional with a reasonably large income and the other spouse has foregone a career, to look after the children for example. 2

It may be pertinent at this point to mention that infidelity, while no doubt causing a great deal of pain to one of the spouses, is not relevant with regard to the distribution of assets upon a divorce. Some confusion has been caused in this area by the fact that, pre-2005 legislation, infidelity was grounds for a divorce. However, even then it had no import with regard to the distribution of assets and the right to an award of alimony to one of the spouses. Factors that are relevant to the award of compensation are the ages of the spouses, their health, the professional status of the spouse requesting the award and their possibilities in general with regard to finding work, the duration of the marriage and the means of income of both spouses with regard to their necessities. In terms of the amount awarded, it is difficult to be precise but the awards to date would tend to vary between 15% and 40% of the salary of the spouse with the (higher) income. Payment is normally made by bank transfer and is adjusted each year according to the inflation rate (IPC). The award may be made for life or for a period of years after which payments will cease. Should the economic situation of either or both of the spouses change however, then the award may be changed by an application to the court. Should alimony be awarded but there is failure to make a payment then an application can be made to the court to have the salary of the spouse obliged to make the payment embargoed and the amount withdrawn at source. Although alimony payments are awarded in 10% of divorce cases in Spain, roughly 80% of self-employed ex-spouses fail to make the stipulated payments and a large percentage of ex-spouses who are employees have their income embargoed.

Child Custody in Spain

The law in Spain states that following the end of a marriage that custody of the children may by awarded to either parent. Although there have been recent developments that suggest the judiciary is beginning to apply more weight to the role of the father in the upbringing of the children (see Shared custody of children in Spain), in almost 95% of cases, custody is awarded to the mother of the children. In Spain, in order for the custody of younger children to be taken from the mother, it would be necessary to demonstrate some type of incapacity on her part to look after them. However, once the children are 13 years of age (or less if they demonstrate sufficient maturity) they will be heard by the court before any judgment is made that will personally affect them. It may be the case of course that the spouses come to an agreement between themselves that sets out the custody of the children including the visitation rights of the spouse who does not take custody. This 3

would have to appear in the convenio agreement. Assuming that the agreement does not put any child at risk in any way the judge will ratify such an agreement. In the absence of an agreement the court will take the following factors into account: Brothers and sisters should not be split-up The emotional requirements of the children The closeness of other relatives to the children (grandparents etc) The ability of one or other of the parents to better look after the children Whether either of the parents has an addiction or other psychological condition

But the factor that tends to carry most weight is the dedication of each parent towards the children before the breakdown of the marriage. It is for this reason that the the courts almost always award custody to the mother.

Visitation Rights
Once custody has been established it becomes necessary to determine the visitation rights that the noncustodial parent may enjoy. The typical arrangement in this regard is for the children to spend alternate weekends with the non-custodial parent and 50% of the holiday periods. However this is also in the process of changing and more and more often mid-week visits are also arranged. The age of the child is taken into consideration when determining the appropriateness of overnight stays with the noncustodial parent, and typically very young children and infants would not do so.

Additional Rights
While the non-custodial parent has the right to enjoy the visitation rights agreed with the other spouse or as decided by the judge, there are other ancilliary rights that they enjoy: Be informed of any important incidents involving the children Continue having the right to make decisions with regard to the upbringing of the children Have recourse to the judge should there be a failure to complete the terms of the 4

visitation schedule Once the children reach 13 years of age they may have their opinion taken into account with regard to establishing the timetable and dates of visits with the non-custodial parent.

Shared Custody in Spain

While technically a possibility under the Law of Divorce of 2005 it has been considered an exception and traditionally shared custody of children in Spain has been awarded in a minority of cases, only occuring in 9.7% of all custody awards made in 2008, for example. This is changing however and there is an increasing tendency by the Autonomous Communities in Spain to enact legislation compelling judges to consider awarding shared custody of children following a divorce. Currently four of the 17 autonomous communities have opted to create laws that make the award of shared custody the preferred option for the court hearing a petition for divorce Aragn, Catalua, Communidad de Valencia and Navarra. The award of shared custody involves both parents more directly in the upbringing of the children. It does not necessarily mean that the children spend 50% of the time with each parent or that the parents necessarily must move in and out of the matrimonial home every six months, as has been suggested. It has been defined as the shared assumption of authority and responsibility by separated parents of common children that permits the children the possibility of counting on both parents...of really having both a mother and a father.... In practice, the concept of shared custody permits both parents and the courts more flexibility when considering the post-divorce upbringing of their children. This may take the form of the children sleeping in one of their parent's houses but being picked-up from school and having a meal each day with the other parent. The system of shared custody is beneficial in that it is a move away from the strict application of custody being awarded to one parent who must then grant the other parent access to the children. That system has been criticised on the grounds of marginalising the other parent and generally depriving the children of having both a mother and father. At the moment it is the law in four autonomous communities but it seems to be on the radar of more and may well become the norm at some point in the future. It should also be pointed out that shared custody may be agreed between the spouses and it is only a matter for the court to consider when agreement has not been reached. Once again, the spouses may 5

agree on any arrangement between themselves that does not in any way harm the children.

Child Maintenance Payments

In Spain, a divorce does not in any way reduce the financial responsibilities that a parent has towards their child. The parent continues to be liable to provide that which is necessary for the sustenance, housing, education, clothing and medical provision of their children. This responsibility does not disappear upon reaching the age of 18 but it does change in the sense that: The right to maintenance is no longer unconditional For the right to continue requires proof of a continuing need The amount may reduce to a minimum There is no preference over other relatives

Indeed the maintenance payments will continue indefinitely if a child is unable to otherwise survive economically or if their education has not been completed or if they are unable to find a job through no fault of their own. The payments are normally a fixed cash amount paid monthly and the amount to pay depends on the following criteria: the childs requirements the economic resources of the parent the economic resources of the other parent

Although both parents are liable economically for their children, typically it is the non-custodial parent that pays child maintenance unless there is shared custody whereupon a joint fund is normally established into which both parents pay and withdraw when they have custody of the children. The law does not prescribe any specific amount that must be paid but a court will take into consideration the income and expenses of each of the spouses so that proportionality may be applied. Furthermore, should the circumstances of either parent change then any agreement or court order may be revisited such that the amount payable by the parent is increased or decreased accordingly. The maintenance sum will also vary according to the IPC or inflation rate.

Despite the fact that there has been a divorce there will continue to be bills and other costs that need to be paid - mortgage or rent, utility bills, childrens clothes, food and education costs among other things. These are 'cargas matrimoniales' or typical family costs and the court, in the absence of an agreement between the spouses, will have consideration to them when considering any 'pensin alimenticia' or maintenance provision that one spouse should pay to the other. In theory the bills should be divided equally with each of the spouses assuming responsibility for 50% of the bills. In practice however, it can be the case that one of the spouses earns a great deal more than the other. Accordingly, the court will consider the income of both spouses as well as their outgoings. Should one spouse need to rent another property this would taken into consideration as would the income of the spouse who has custody of the children.

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