In Spain, the jurisdictional requirements for divorce and property division are primarily based on the domicile and nationality of the spouses. Here are the key points:

a. Jurisdiction for Divorce:

• Residency Requirement: Spanish courts will have jurisdiction if at least one of the spouses is a resident of Spain. This can be based on:
  • The habitual residence of either spouse.
  • The last common habitual residence of the spouses, provided that one of them still resides there.
  • If neither spouse lives in Spain, the court may still have jurisdiction if both spouses are Spanish nationals.
• Nationality: Spanish courts also have jurisdiction if both spouses are Spanish nationals, even if they live abroad.

Divorce can be granted by mutual consent or contested. For mutual consent, both parties agree on all aspects, including property division and child custody. If the divorce is contested, a longer legal process will be necessary, involving separate rulings on issues like child custody, spousal maintenance and property division.

b. Jurisdiction for Property Division: 

• Matrimonial Property Regime: Spain follows a community property regime (joint assets) unless the spouses have opted for a different marital property regime, such as separation of assets or profit property regime.
• The jurisdiction for dividing property in Spain typically depends on:
  • The location of the marital properties. Spanish courts will have jurisdiction over properties located within Spain.
  • The applicable law chosen by the spouses, if they signed a prenuptial agreement or other marital property agreements.
• In the absence of a marital agreement, the property division will follow Spanish law if the spouses are domiciled in Spain or if their property is located in Spain.

In summary, jurisdiction for divorce and property division in Spain is based on residency, nationality, and the location of property, with additional weight given to any prenuptial or marital property agreements between the parties.

Under Spanish law, divorce proceedings may be stayed in favour of proceedings in another country in certain specific circumstances. This situation typically arises when there is a conflict of jurisdictions. Below are the key scenarios where Spanish courts might stay divorce proceedings in favour of another country’s courts:

1. Lis Pendens:

• The principle of “first-seized court” in cases of jurisdictional conflicts between EU member states is applicable in Spain. This means that if one of the spouses has initiated divorce proceedings in another EU country, and that court was the first to be seized, the Spanish court must stay its proceedings and wait for the foreign court to determine whether it has jurisdiction.
• If the foreign court accepts jurisdiction, the Spanish court must decline jurisdiction and terminate its own divorce proceedings.

2. Forum Non Conveniens:

• While forum non conveniens is not widely applied in Spanish civil law, in exceptional cases, a Spanish court might stay proceedings if it determines that another country’s courts are better suited to hear the case. This can happen if:
  • The parties have a stronger connection to the other jurisdiction, such as habitual residence, nationality, or the location of the matrimonial assets.
  • Divorce proceedings in the other country are more appropriate based on family considerations, such as the residence of children, their education, or welfare.
  • The other country’s laws might provide for a more complete or effective resolution of all issues related to the divorce, including property division, spousal support, and custody.

3. International Agreements or Treaties:

• Spain is a member of bilateral and multilateral treaties related to family law, including divorce and child custody matters. If an international agreement establishes a framework where another country has priority in handling divorce cases, a Spanish court may stay its own proceedings to respect the international legal framework.

4. Choice of Jurisdiction in Prenuptial or Postnuptial Agreements:

• If the spouses have entered into a prenuptial or postnuptial agreement in which they specifically agreed that divorce proceedings should be heard in a foreign jurisdiction, the Spanish courts may honor this agreement and stay the proceedings.
• Spanish courts respect party autonomy in contractual agreements, as long as the agreement does not conflict with Spanish public order. However, certain family law matters (like child custody) cannot be waived or fully contracted away by the parties.

5. Avoiding Conflicting Judgments:

• Spanish courts are concerned with avoiding conflicting judgments in different countries, especially in cross-border cases where issues such as child custody, support, or property division may arise. If a court in another country is already addressing these matters, the Spanish court might stay the case to avoid duplication and ensure consistency in the legal outcome.

In summary, Spanish courts may stay divorce proceedings in favor of another country’s jurisdiction when there are pending proceedings abroad, a more appropriate forum, or in deference to international agreements or prenuptial agreements. However, the decision to stay is always subject to the court’s evaluation of the specific facts and applicable legal frameworks.

Applicable law is highly relevant in Spain, especially in cross-border family law matters like divorce, property division, child custody, and maintenance. Spanish courts often have to determine which country’s law will govern various aspects of a family law case, particularly when international elements are involved (e.g., different nationalities, residences, or properties located abroad).

a) International or Cross-Border Marriages:

In cases where the spouses have different nationalities or have lived in different countries, determining which country’s law applies is crucial. Spain, as an EU member, applies EU regulations and international treaties to determine the applicable law, particularly in family law cases.

The law that may apply could be:

• The law of the country where the spouses habitually reside at the time the court is seized.
• The law of the country where the spouses last habitually resided, provided that one still resides there.
• The law of the country of either spouse’s nationality.
• The law of the country with which the spouses have the closest connection.

This means that the law governing divorce in Spain could potentially be the law of another country if one of these factors applies.

b) Prenuptial or Marital Agreements (Choice of Law Clauses):

Spouses can choose the law applicable to their marriage and property regime through a prenuptial agreement or postnuptial agreement. Spanish law recognizes these agreements as long as they are not contradictory to Spanish public policy.

However, such agreements cannot cover all aspects of family law, especially when it comes to non-waivable rights, such as child custody and child support.

c) Inheritance Law:

Spain is also subject to the EU Succession Regulation (Regulation (EU) No. 650/2012), which governs the applicable law in cross-border inheritance cases. Under this regulation, the applicable law to inheritance is generally the law of the deceased’s habitual residence at the time of death, unless the deceased has chosen the law of their nationality to govern their succession, this may affect property division in family law matters.

d) Non-EU Countries and International Treaties:

If one or both spouses are from a non-EU country, the applicable law is determined by Spanish private international law and any bilateral or multilateral treaties Spain has with that country. Spain’s domestic conflict-of-laws rules help determine which legal system applies in the absence of an international regulation.

e) Public Policy Exception:

Spanish courts may refuse to apply foreign law if it violates Spanish public policy (“orden público”). For example, if the foreign law discriminates based on gender or violates fundamental rights, Spanish courts will reject its application and apply Spanish law instead.

In summary, applicable law is highly relevant in Spain when handling family law cases with international elements. It applies through various EU regulations, international treaties, and Spanish private international law, ensuring that the legal system best suited to the situation governs each aspect of the case.

In Spain, the grounds for divorce are not fault-based. This means that one spouse does not need to prove that the other spouse was at fault (e.g., due to adultery, abandonment, or abuse) in order to obtain a divorce.

Grounds for Divorce in Spain:

For divorce in Spain, the main requirement is that the couple has been married for at least three months. The only requirement is that certain time-related conditions are met, which are as follows:

1. Mutual Consent Divorce:

• There is no need to provide any grounds for the divorce beyond the mutual agreement.
• The spouses must present a regulatory agreement(namely “convenio regulador”) to the court, which outlines arrangements related to child custody, visitation, spousal support, and property division. If the court approves this agreement, the divorce is granted.

2. Contested Divorce:

• In the case of a contested divorce, where only one spouse wishes to divorce, a divorce can still be granted without the need to prove fault. The only condition is that three months must have passed since the marriage.
• The spouse seeking divorce must file a petition, but no specific reasons need to be provided beyond the desire to dissolve the marriage.

3. Legal Separation:

Legal separation is still available in Spain as an option for couples who want to live separately and settle issues like child custody and property division without ending the marriage. Like divorce, legal separation does not require any fault-based grounds and can be sought after three months of marriage, or immediately in cases of violence or danger.

In conclusion, Spanish divorce law is based on the principle of no-fault divorce, meaning that neither party needs to prove any fault or misconduct to obtain a divorce. The main legal requirement is that three months must pass from the marriage date.

In Spain, serving the application for divorce on the respondent is an essential part of the divorce process. The service of documents ensures that the respondent is formally notified of the divorce proceedings and given the opportunity to respond. The requirements and procedures for serving the divorce application are as follows:

a) Service of Process through the Court (Judicial Notification):

• In Spain, divorce applications are typically served through judicial notification. Once the petition for divorce is filed with the court, the court will issue an official notification to the respondent.
• The notification includes the following:
  • A copy of the divorce petition filed by the spouse initiating the divorce.
  • Any accompanying documents, such as the regulatory agreement (if the divorce is by mutual consent).
  • A summons for the respondent to appear in court or respond within a specific time frame (typically within 20 working days).
• This notification is usually served by the Court or, in some cases, by personal service.
• If the respondent cannot be located despite reasonable efforts, or if they are deliberately avoiding service, Spanish law provides alternative methods of notification, including:
  • Publication in official bulletins: The court may order that the notice of divorce proceedings be published in the official gazette or local newspapers, especially if the respondent is missing or their whereabouts are unknown.
• If the respondent resides outside of Spain, specific international procedures must be followed:
  • EU countries: Spain will cooperate with other EU member states to serve divorce documents across borders. Documents can be served using the European Judicial Network or through the relevant authorities in the respondent’s country of residence.
  • Non-EU countries: In cases involving non-EU countries, Spain follows the rules outlined in international treaties.
• If the respondent is properly served but fails to respond within the required time (usually 20 days), the court may proceed with the divorce in their absence.

In Spain, the recognition of foreign marriages and foreign divorces follows specific legal principles, depending on where the marriage or divorce took place, and whether there are bilateral or multilateral agreements, such as EU regulations or international conventions, that govern such recognition.

1) Recognition of Foreign Marriages in Spain:

Foreign marriages are generally recognized in Spain under certain conditions. The key factors determining recognition are compliance with the law of the country where the marriage took place and Spain’s public policy requirements.

1. For a foreign marriage to be recognized in Spain, it must be valid under the laws of the country where it was celebrated. This includes meeting the procedural and substantive requirements for marriage in that jurisdiction (e.g., marriageable age, consent, form of the ceremony).
2. If the marriage was validly performed according to the foreign country’s laws, Spain generally recognizes it.

2) Compliance with Spanish Public Policy:

Even if a marriage is valid in the foreign country, it must not violate Spanish public policy.

3) Recognition of Foreign Divorces in Spain:

The recognition of foreign divorces in Spain depends on whether the divorce was granted within the EU or in a non-EU country. Spain recognizes foreign divorces through automatic recognition in some cases, and through a formal process known as exequatur for others.

a) Recognition of EU Divorces (Under Brussels II bis/Brussels II ter):

Under the Brussels II ter divorces granted in another EU member state are automatically recognized in Spain.

b) Recognition of Non-EU Divorces (Exequatur Process):

• For divorces granted in non-EU countries, Spain requires a formal Exequatur process to recognize the divorce. This is a judicial procedure that allows a Spanish court to determine whether the foreign divorce can be recognized in Spain.

Once the Exequatur is granted, the foreign divorce is officially recognized in Spain and has the same legal effect as a Spanish divorce.

Same-sex marriages have been permitted in Spain since  2005, when Spain became one of the first countries in the world to legalize marriage equality through Law 13/2005. This law granted same-sex couples the same rights and responsibilities as opposite-sex couples, including the right to marry, adopt children, and inherit property. The legislation amended the Spanish Civil Code, ensuring that marriage is defined as a union between two persons, regardless of gender.

Recognition of Foreign Same-Sex Marriages in Spain:

Spain recognizes same-sex marriages that have taken place in other jurisdictions, as long as the marriage is valid under the laws of the country where it was celebrated. The recognition of foreign same-sex marriages follows the same principles as the recognition of foreign marriages.

In Spain, when a couple divorces or separates, the court has the authority to issue financial orders to resolve issues related to property, funds, bank accounts, maintenance, etc. The purpose of these orders is to ensure a fair division of assets and appropriate financial support, particularly when one spouse is economically disadvantaged. These orders include capital division, property allocation, and maintenance (alimony).

A. Capital Orders:

The court can order the division of joint bank accounts, investment portfolios, or other financial assets accumulated during the marriage.

If one spouse has contributed more financially or owns more assets under the separation of property regime, the court does not automatically equalize the assets unless there’s a contractual agreement.

B. Housing and Real Property:

The family home is often a central issue in property division. If it is jointly owned, the court may order its sale and divide the proceeds, or it may award exclusive use to the spouse who has custody of the children, even if that spouse does not own the home.

C. Spousal and Child Maintenance:

Spain’s approach to spousal maintenance is focused on ensuring financial support for the economically weaker spouse, but it is generally limited in duration and scope.

D. Child Maintenance:

Child maintenance is mandatory for the parent who does not have primary custody, and the amount is based on the needs of the child and the financial capacity of both parents.

The court will ensure that child support covers essential needs like education, healthcare, and daily living expenses. The amount is calculated based on the income of both parents, the number of the children and the children´s needs.

E. Use of the Family Home:

The court may award exclusive use of the family home to one spouse, particularly the spouse who has primary custody of the children. The family home has a strong protection for the children. This use is often granted regardless of ownership, prioritizing the children’s stability. The right to use the family home is temporary until the children reach 18 years old or they reach financial independence.

F. Division of matrimonial Debts:

Just as assets are divided, so too are debts incurred during the marriage. In the community of property regime, debts taken on during the marriage are considered joint debts, and both spouses share responsibility for them.

Under the separation of property regime, each spouse is generally responsible for their own debts, unless they were incurred for the benefit of the family (e.g., a mortgage on the family home).

In Spain, courts can issue various orders related to pensions in the context of divorce or separation. The primary types of pension orders include:

a) Spousal Maintenance: The court may order one spouse to pay alimony to the other, which can be temporary or permanent. This is intended to support the lower-earning or non-earning spouse.

b) Child Maintenance: Courts will also address the financial needs of children, requiring one or both parents to contribute to their upbringing, including education, healthcare, and general living expenses.

c) Pension Orders:

In some cases, especially after long marriages, courts may consider sharing pension entitlements accumulated during the marriage namely “compensatory pension” and “pension for dedication to the family”.

The guiding principles for determining pension orders include:

1. Need: The financial needs of the spouses, including their living expenses and any special circumstances, are critical in deciding alimony and child maintenance.
2. Ability to Pay: The financial capacity of the paying spouse is also a significant factor. The court will assess income, assets, and other financial obligations.
3. Standard of Living: The court may consider the standard of living the parties enjoyed during the marriage when determining the level of support.
4. Duration of the Marriage: The length of the marriage can influence the duration and amount of maintenance awarded.
5. Contributions: Both financial contributions (e.g., income earned) and non-financial contributions (e.g., homemaking, child-rearing) are taken into account.
6. Age and Health: The age and health of both parties can also play a role, particularly if one spouse is unable to work.
7. Impact on Children: The well-being and needs of any children involved will always be a primary concern.

Spanish courts can make interim provisions during legal proceedings, including orders for legal costs. These provisions are often intended to provide temporary relief or maintain fairness between the parties until the case is fully resolved.

Some common types of interim provisions:

1. Maintenance:

The court can order one spouse to pay temporary alimony to support the other spouse and any children during the proceedings. This helps maintain the financial status quo until a final decision is made.

Temporary child support can be ordered to cover the children’s living expenses, education, and healthcare until the final resolution of the case.

2. Legal Costs:

The court may also order one party to pay the legal costs of the other party, especially if there is a significant imbalance in financial resources.

3. Use of Property:

Courts can grant interim orders regarding the use of the family home determining who will live there during the proceedings.

4. Freezing Orders:

Courts can issue freezing orders to prevent the dissipation of assets that might be required to satisfy a future judgment.

Financial claims can potentially be made after a foreign divorce in Spain, but there are specific conditions and limitations that need to be considered.

1. Recognition of Foreign Divorce (Exequatur)

Before any financial claims can be made, Spain generally requires that the foreign divorce be officially recognized through a process called exequatur. This legal procedure involves confirming that the foreign divorce decree complies with Spanish legal standards and does not violate public policy. Once recognized, the divorce is considered valid in Spain.

2. Financial Claims After Divorce

Once the foreign divorce is recognized, it may be possible to bring financial claims in Spain under certain conditions:

• Jurisdiction: Spanish courts may have jurisdiction if one of the parties resides in Spain or if there are assets located in Spain.
• Spousal Maintenance: A claim for spousal maintenance may be made, provided the ex-spouse meets the criteria set out under Spanish law (e.g., financial dependence on the other spouse).
• Division of Assets: Spanish courts may handle the division of assets located in Spain, especially if the couple had joint property in the country.
• Child Maintenance and Support: Claims for child support and maintenance can often be brought in Spain if the children have the habitual residence in Spain.

3. Limitations

• Timing: There may be time limitations on when financial claims can be made after a divorce.
• International Treaties: If the foreign divorce comes from an EU country, European Union regulations may simplify the recognition process and related claims.
• Conflict of Laws: Spanish courts will consider the legal system under which the divorce was granted and may apply Spanish law or foreign law, depending on the case specifics.

 To enforce a foreign financial order in Spain, including orders related to pensions:

1. File an exequatur to have the foreign order recognized, unless it comes from an EU country where automatic recognition applies.
2. Enforce the recognized order through appropriate Spanish legal mechanisms, the execution proceedings should be initiated.
3. For maintenance orders, the Hague Convention may provide an easier route for enforcement.

Matrimonial property regimes are recognized in Spain, including those established under EU regulations. Spain applies the rules of the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103), which governs the property regimes of international couples married after January 29, 2019. This regulation applies to spouses from different EU countries or when assets are located in multiple EU member states.

1. Common Regime in Spain: The community of property (sociedad de gananciales) is the most common matrimonial regime unless another regime is chosen.
2. Choice of Law: Under EU Regulation 2016/1103, couples can choose which country’s laws govern their matrimonial property regime.
3. Foreign and EU Marriages: Spain recognizes property regimes from other EU countries in accordance with the regulation, as long as they comply with public policy and do not conflict with Spanish law.

Prenuptial and postnuptial agreements (Capitulaciones Matrimoniales) are recognized in Spain and enforceable, provided they meet certain legal requirements. These agreements allow couples to choose or modify their matrimonial property regime and regulate their financial arrangements in the event of a divorce or separation.

1. Requirements for Prenuptial and Postnuptial Agreements in Spain:

• Notarial Form: Both prenuptial and postnuptial agreements must be executed before a notary and included in a public deed (escritura pública). This formality is required for the agreement to be legally valid.
• Registration: For the agreement to be enforceable against third parties, it must be registered in the Civil Registry.
• Fair and Legal Content: The terms of the agreement must comply with Spanish law and public policy. For example, provisions that limit one spouse’s right to child support or violate basic rights will not be enforced.

2. Differences Between Agreements Concluded in Spain vs. Other Jurisdictions:

• Agreements Concluded in Spain: Prenuptial and postnuptial agreements made in Spain must follow Spanish legal formalities (i.e., executed before a notary and registered). These agreements are typically governed by Spanish law, although couples can choose another legal system if it applies to their situation (e.g., nationality or habitual residence).
• Agreements Concluded in Another Jurisdiction:
  • EU Regulations: Under EU Regulation 2016/1103 (on matrimonial property regimes), Spain will recognize prenuptial or postnuptial agreements concluded in another EU country, provided the agreement complies with the law of the chosen country and does not violate Spanish public policy.
  • Non-EU Agreements: If the agreement was concluded in a non-EU jurisdiction, Spain may still recognize it, but it must be evaluated to ensure it meets Spanish legal standards and public policy requirements.

In Spain, child maintenance (pensión alimenticia) is addressed through specific legal frameworks and procedures designed to ensure that the financial needs of children are met.

1. Legal Framework:

Child maintenance is governed by the Spanish Civil Code. The obligation to provide maintenance falls on both parents, regardless of marital status.

2. Calculation of Maintenance:

1. Needs of the Child: The court considers the child’s basic needs, including food, clothing, education, and healthcare.
2. Financial Capacity of Parents: The income and financial situation of both parents are taken into account. The maintenance amount should be proportional to their respective financial abilities.
3. Standard of Living: The court may also consider the standard of living the child would have enjoyed had the parents remained together.

3. Duration of Payments:

Child maintenance typically continues until the child reaches adulthood (18 years old) or becomes financially independent. However, it can extend longer if the child is still pursuing education or training.

4. Modification of Maintenance:

Maintenance orders can be modified if there are significant changes in circumstances, such as changes in income, employment status, or the needs of the child.

5. Enforcement:

If a parent fails to pay the ordered maintenance, the other parent can seek enforcement through the courts. This may involve measures like wage garnishment or seizure of assets.

6. Agreement Between Parents:

Parents can agree on the amount and terms of child maintenance, which can then be submitted to the court for approval. The court will review the agreement to ensure it meets the child’s best interests.

Spanish courts have the power to make orders for financial provision for a child, in addition to maintenance, under certain circumstances. These provisions can include orders related to housing and lump sums. Spanish courts have the authority to make various financial provision orders for children beyond maintenance, focusing on their welfare and best interests.

1. Housing Provision:

Family Home: The court can order that the child remains in the family home, especially if it is deemed necessary for the child’s stability and well-being. This may involve one parent being granted use of the property or the other parent being required to provide alternative housing.

Rental Payments: If the family home cannot be retained, the court may order one parent to contribute to housing costs, such as rent for a suitable home for the child.

2. Children expenses:

The court can order one parent to pay a lump sum to cover specific expenses related to the child, such as educational costs, medical expenses, or other significant needs.

3. Best Interests of the Child:

Any orders made regarding housing or capital sums are primarily guided by the principle of the child’s best interests. The court will assess what arrangements will best support the child’s emotional, educational, and physical well-being.

4. Circumstances:

Such orders may be more common in cases of divorce or separation where the financial circumstances of the parents vary significantly or where specific needs arise, such as a child with special needs or significant educational and medical expenses.

In Spain, unmarried couples are recognized under specific legal frameworks, particularly through the concept of “uniones de hecho” (de facto unions). Here’s how it works:

1. Legal Recognition:

Many regions in Spain have specific laws that recognize de facto unions, which grant some legal rights and protections similar to those of married couples. Unmarried couples in registered partnerships often have rights related to:

• Property: Joint ownership of property acquired during the relationship.
• Maintenance: Potential claims for maintenance similar to those available in marriage.
• Inheritance: Rights to inherit from each other, although this can vary by region.
• Health Care: Rights to make medical decisions for a partner in case of incapacity.

2. Cohabitation Agreements:

Unmarried couples can also create cohabitation agreements to outline their rights and obligations regarding property, maintenance, and other matters. While these agreements may not carry the same legal weight as marriage, they can provide clarity and help resolve disputes.

Unmarried couples do not have the same legal rights as married couples when they separate. However, there are some financial claims that can be made, particularly if they were in a registered partnership (pareja de hecho) or if there are children involved. The rights for the children are the same as married parents.

The guiding principles for such claims are rooted in fairness, child welfare, and financial need.

1. Registered Partnerships:

In some Spanish regions registered domestic partnerships provide certain legal rights similar to marriage, but the specifics vary by region.

Financial claims in these cases may include: compensation for contributions, division of joint assets if the couple acquired jointly assets and support for the partner if the separation created a financial imbalance.

2. Unregistered Unmarried Couples:

For couples who are not married and not in a registered partnership, there are no automatic financial claims related to property division or spousal support. However:

• Jointly owned property: If the couple jointly owns property, it will be divided according to ownership rights or agreements.
• Contracts or Agreements: If the couple had contracts(e.g., cohabitation agreements) that outline financial provisions upon separation, these may be enforced.

3. Financial Claims for Children:

Regardless of the relationship status of the parents, financial support for children is always a priority:

• Child Maintenance: The non-custodial parent must pay child support to cover the child’s basic needs (food, education, housing, healthcare, etc.).
• Housing and Extra Expenses: In some cases, the court may grant use of the family home to the custodial parent to ensure the child’s stability. Courts may also order the non-custodial parent to cover additional educational or medical expenses.

4. Guiding Principles:

• Proportionality: Claims are typically assessed based on each partner’s financial contribution to the relationship, both during the partnership and upon separation.
• Equity and Fairness: Courts aim to achieve a fair distribution of assets and responsibilities, considering factors like the length of the relationship, the standard of living during the union, and any financial or caregiving contributions.
• Best Interests of Children: If there are children involved, the needs of the children are paramount. This can influence decisions related to property, maintenance, and living arrangements.

In Spain, the status of separated parents regarding their children is largely focused on the best interests of the child, regardless of whether the parents were married or not. Here are the key points:

1. Parental Rights and Responsibilities:

Both married and unmarried parents have equal rights and responsibilities toward their children. This includes obligations related to care, education, and financial support.

2. Custody Arrangements:

Courts prioritize the child’s best interests when determining custody arrangements, which can include parental responsibility and physical guard.

3. Child Maintenance:

Both parents, whether married or unmarried, are obligated to provide financial support for their children. This includes child maintenance (pensión alimenticia), which is determined based on the needs of the child and the financial capacity of both parents.

4. Legal Recognition:

Unmarried parents may need to establish paternity through formal legal processes to ensure their rights and responsibilities are recognized, especially regarding custody and maintenance.

5. Impact of Marital Status:

While the marital status of the parents does not affect their rights and obligations toward their children, unmarried parents may face additional steps to formalize agreements or establish paternity. However, once established, their rights and responsibilities are similar to those of married parents.

In Spain, jurisdictional requirements for child arrangements and custody are primarily governed by the Spanish Civil Code and international regulations. Here are the key points regarding jurisdiction:

1. Habitual Residence:

The primary criterion for determining jurisdiction is the child’s habitual residence. The court in the region where the child has lived for most of the time in the year preceding the application generally has jurisdiction to make decisions about custody and child arrangements.

2. Parental Agreement:

If both parents agree on custody and living arrangements, they can submit their agreement to the relevant court in the jurisdiction where the child resides.

3. International Considerations:

If the parents are from different countries or if the child has connections to more than one jurisdiction, international treaties may apply. The Hague Convention on the Civil Aspects of International Child Abduction governs cases involving international child custody disputes, aiming to ensure the prompt return of children wrongfully removed from their habitual residence.

4. Child’s Best Interests:

Courts prioritize the child’s best interests when determining jurisdiction and making custody decisions. This principle guides courts in all aspects of child custody matters.

5. Establishing Paternity:

In cases involving unmarried parents, establishing paternity may be necessary for jurisdictional matters, particularly in relation to custody and maintenance claims.

The court can issue several types of orders related to child custody and living arrangements during a divorce or separation. The guiding principle in all cases is the best interests of the child. Spanish courts prioritize the child’s welfare, stability, and emotional well-being when making decisions.

1. Custody Orders:

a) Joint Custody (Custodia Compartida):

This is the preferred option in Spain, where both parents share responsibility for the child’s upbringing. The child alternates living between both parents’ homes, often on a weekly or bi-weekly basis.

Joint custody can be awarded if the parents have a cooperative relationship and can agree on the child’s upbringing.

b) Sole Custody (Custodia Exclusiva):

One parent is granted sole custody, meaning the child primarily lives with that parent. The non-custodial parent is typically granted visitation rights.

c) Visitation and Contact Orders:

When one parent is awarded sole custody, the non-custodial parent is usually granted visitation rights. The court sets a schedule for regular visits, holidays, and sometimes overnight stays.

The court can restrict or supervise visitation if necessary, especially when the child’s safety is a concern.

2. Types of Orders on Living Arrangements:

a) Exclusive Use of the Family Home:

The court may grant exclusive use of the family home to the custodial parent, particularly when children are involved. This ensures stability and continuity for the child, regardless of property ownership.

b) Relocation Orders:

If one parent wishes to move with the child to another city or country, the court must approve this request, considering the impact on the child’s relationship with the other parent and overall welfare.

Guiding Principles for Custody and Living Arrangements:

The best interests of the child are paramount in determining custody and living arrangements. Key factors include:

• Emotional and psychological well-being of the child.
• Relationship between the child and each parent.
• Parenting capacity of each parent (including their ability to provide a stable, safe, and nurturing environment).
• The child’s opinion, especially if the child is mature enough to express their wishes.
• The continuity of the child’s social and educational environment (e.g., maintaining the same school, friendships, and routines).

Spanish courts aim to promote co-parenting when possible, encouraging both parents to remain actively involved in the child’s life. Sole custody is typically a last resort unless joint custody would be detrimental to the child.

Steps Followed to Hear the Voice of the Child:

1. Age and Maturity:

The court considers the views of the child if they are mature enough to express a reasoned opinion. Generally, children aged 12 and above are deemed capable of expressing a meaningful opinion, though younger children may also be heard depending on their level of maturity.

2. Judicial Interview (Audiencia del Menor):

The judge may conduct a private interview with the child in court. This is done in a neutral, non-confrontational setting, without the parents present, to understand the child’s wishes and feelings about custody and living arrangements.

The child’s preferences are considered but do not necessarily dictate the outcome. The court balances the child’s wishes with their best interests.

3. Psychological and Social Reports:

A court may request a report from a court-appointed psychologist or social worker. These professionals assess the child’s well-being, family dynamics, and the child’s relationship with each parent.

The psychological evaluation can be a key piece of evidence in determining the child’s best interests.

4. Child Welfare Authorities:

In some cases, the Child Welfare Department (Equipo Técnico) may be involved to conduct assessments and provide recommendations to the court regarding custody and visitation rights.

International child relocation is a complex issue that requires a careful and considered approach. In Spain, judicial decisions in this area are guided by the principle of the child’s best interests, which involves a detailed assessment of how the relocation will affect their well-being in all aspects. For foreign parents facing this type of situation, it is essential to be well-informed about the applicable legal framework and jurisprudence, and to be prepared to present a solid case demonstrating that the relocation is in the child’s best interests.

It is increasingly difficult to find judicial decisions that allow the relocation of children born and raised in Spain to other countries after the divorce of the parents. The important relocation decision was the one taken by the parents to leave their country of origin to start a new life in another country, with a family life project, which must be continued if it guarantees the protection and well-being of the children.

Separating young children from one of their parents and taking them to a different country has harmful consequences as they would lose their emotional attachment to their parent, a circumstance that some of the parents do not attach any importance to.

It is also worth remembering the enormous complexity of this type of proceedings, in which the position of the judge is of special consideration, as it is not a matter of resolving a mere legal controversy of private claims, but of adopting a decision in which human interests of a family nature converge, a decision that becomes even more complex when the interests of minor children are at stake.

The change of country is a change of crucial importance for the children, so that what is decisive in deciding on the matter, we insist, is the interest of the minors, which is the primary concern, and not the preferences or wishes of their parents; in short, the interest of the parents, however legitimate it may be, is always subordinate to the interest of their minor children.

Finally, if the change of country can mean removing the children from their parent’s life, from their usual family environment, school, etc…. and exposing them to a new and different educational system and a new social and family environment, far from the one in which they have grown up, -even in the case of the country of origin of one of the parents- and this for reasons beyond the control of the children themselves, derived from the break-up of their parents, without it having been accredited that the relocation is convenient and beneficial for the children themselves, even more so when the intended relocate them would undoubtedly damaging the relationship between behind parent and children, which would be contrary to the interests of the children themselves.

The process for recognizing and enforcing foreign custody and contact orders in Spain is structured to ensure that such orders are legally valid and aligned with the best interests of the child.

a. International Considerations:

If the foreign order was issued in a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, specific provisions of the Convention may apply, particularly regarding wrongful removal and return of the child.

b. Mirror Orders:

Spanish courts do not operate a formal system of mirror orders, which refers to a process where a court in one jurisdiction automatically issues a similar order to that of another jurisdiction.

Instead, the Spanish court will examine the foreign order’s validity and compatibility with Spanish law before recognition and enforcement.

Spain does not have specific legislation regulating surrogacy, or more precisely, it regulates it denying its validity. The Assisted Reproduction Law of 2006 expressly prohibits this practice, stating that any surrogacy agreement is null and void. Additionally, the Civil Code establishes that the legal mother of a child born through surrogacy is the woman who gave birth.

In Spain, surrogacy arrangements are not legally recognized, and the status of surrogacy is complex.

1. Legal Status:

Prohibition of Surrogacy: Spanish law does not recognize surrogacy agreements, and any contractual arrangement related to surrogacy is considered null and void. This means that surrogacy is not a legally permissible option for intended parents in Spain.

As indicated above, despite this prohibition, there is an underlying reality: more and more Spanish citizens (normally wealthy, but not always) look for surrogacy in other countries where it is legal. Upon their return to Spain, these parents face numerous legal and administrative hurdles in obtaining recognition of their parenthood and the newborn’s nationality.

The law establishes that if the child is integrated in a given family unit for a prolonged period of time, that is to say, if the child has de facto family relations with the person seeking recognition of the paternal or maternal-filial relationship in their favor, the solution to be sought both by the applicant and by the public authorities involved should be based on this fact and allow the development and protection of these links, in accordance with the case law of this Court and of the European Court of Human Rights, which has recognised the existence of a de facto family life even in the absence of biological ties or a legally recognised bond, provided that certain affective personal ties exist and are of relevant duration.

2. Legal Parentage:

If a Spanish citizen or resident seeks to establish parentage for a child born through surrogacy in another jurisdiction, they may face legal challenges upon returning to Spain. The Spanish courts typically recognize only the biological parents (or those who adopt) as the legal parents.

3. Compensation for Surrogates:

Prohibition on Payment: In Spain, any payment to a surrogate beyond reimbursement for expenses (such as medical costs or maternity-related expenses) is generally prohibited. This aligns with the legal view that surrogacy should not be a commercial transaction.

4. International Surrogacy:

Some Spanish citizens may opt for surrogacy arrangements in countries where it is legally permitted and regulated. However, upon returning to Spain, they may encounter difficulties in securing legal recognition of their parental rights.

The debate on surrogacy in Spain has intensified in recent years, raising greater public awareness of the issue. Various groups and organizations, both in favor and against, have voiced their opinions.

Surrogacy’s topicality makes us see new challenges that are highlighted every time someone famous makes the media spotlight on this phenomenon.

It is evident that the lack of adequate regulation creates a legal vacuum and hinders the protection of the rights of all parties involved. The absence of clear legislation also increases uncertainty and risks for both intended parents and children.

In Spain, several forms of non-court dispute resolution are available, allowing parties to resolve conflicts without resorting to litigation. Here are the main options:

1. Mediation:

• Family Mediation: Specifically designed for family disputes, such as divorce or child custody. Mediators help parties reach agreements in a supportive environment. It’s often encouraged in family law cases.
• Civil and Commercial Mediation: Used for resolving disputes in business or civil matters. It can be a quicker and less expensive alternative to litigation.

2. Arbitration:

A more formal process than mediation, arbitration involves appointing an independent third party (the arbitrator) to make a binding decision on the dispute. This is often used in commercial disputes and can be tailored to the specific needs of the parties.

3. Collaborative Law:

A relatively new approach where parties and their lawyers commit to resolving disputes collaboratively without going to court.

Conclusion:

Spain offers various non-court dispute resolution mechanisms. These methods can provide more flexible, cost-effective, and timely solutions to disputes compared to traditional court proceedings.