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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain

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Archive for the ‘Family Law’ Category

Divorce and Separation in Spain and the Family Home

March 5th, 2013

The title is short but the consequences often complex, far reaching and can be around for decades.

Where a couple, married or otherwise, decide to end the joint use of the family home following separation or divorce the family home, whether jointly or privately owned by one partner, becomes the asset that is the subject of the greatest disputes and concerns, for many and obvious reasons, both personal and financial.

In Spain, Courts have certain guidelines that they tend to stick to when deciding about who is to retain possession: ownership situation, existing judicial precedent, social inertia, mutual or unilateral decision (very often, one partner leaves willingly) and, most importantly, children.

The following guidelines can help us understand what we can expect when in this situation:

  • Where children are involved, 95% of the times the use of the family home goes to the mother because she is granted custody in 95% of cases.
  • Where children are not involved, the judge can decide that possession, for a prudent period of time (some Courts establish this to be 6 to 12 months), goes to the non-owning spouse/partner if he/she is in more demand of protection (lack of income, financial situation, illness).
  • Where children are not involved, the property is owned jointly and both parties are in a similar financial situation, the owning partner will have the right to enjoy possession. Where it is jointly owned, Courts expect partners to agree on its use failing which, the property is to be sold at public auction and the proceeds, if any, divided. If the property is not sold at auction, a common occurrence particularly where a large mortgage is registered, the Court can allocate the use of the property by alternate periods of time and, very exceptionally, it could even be partitioned with a wall if the home lends itself to it.
  • Situations of domestic violence are extremely complex because the male partner generally spends time in police cells, get prosecuted and normally, regardless of the outcome of the proceedings, is given a restraining order that automatically means he is out of the family home.

 

Family Law

Getting Divorced in Spain Discussed on Talk Radio’s Life At Five with Allan Tee

May 18th, 2011



For those of you interested, I will be today around 4.20 PM on the Life At Five with Allan Tee Show on Talk Radio Europe, to explain the ins and outs of the divorce procedure in Spain.

You can tune in directly through their website (internet stream), or through the FM frequency assigned in your area.

 

Family Law

Supreme Court Wants More Equality in Spanish Divorces

May 9th, 2011

It has left us all wondering how come a ruling clearly favouring men has not been used, as a political weapon, by the sectarian feminist brigade and in fact, has gone almost unnoticed. The reason? Because the deciding magistrate was a woman.

I am talking about the latest Supreme Court decision that rules that divorcees will both pay the mortgage on the existing home in proportion to their share of ownership. So, whereas before the mortgage was deemed to be part of the monthly payment the better off divorcee (or separated spouse) had to pay the worst off, thereby being shared in accordance to their earnings (the appealing ex-husband was paying 80 per cent), it is now considered to be a debt generated by the spousal financial agreement, signed prior to marriage, and thus shared equally.

Most opinions I’ve listened to coincide in one thing: this new trend will help ease off the strain recent case law has created in couples in respect to the perceived advantages women got when divorcing, in a seemingly endless gender struggle. This subject, always susceptible to being interpreted by male extremists as  the price to pay for living in a country famed for domestic abuse/violence (one would be surprised though to know what statistics published in other countries say) will no doubt be debated thoroughly in the months to come, if new similar rulings see the light, in particular one seen as the “war of sexes time bomb”: the shared children custody.

Family Law, Litigation , , , , ,

Entitlement of Children, and Not so Children, to Maintenance Following Divorce in Spain

June 27th, 2010

Spain’s shocking 20% unemployment rate may not be so shocking after all, if we read a risible court ruling where a judge has to tell 3 grownups that they are not any longer entitled to child maintenance. The ruling decided on appeal a petition from a mother of three to the effect that her children were too old to be eligible for pocket money, since they were old enough to fend off for themselves in life. The first one, 34 years of age, was a doctor in law and now studying economics. The second one, 32 years of age, had passed her exams as a tax inspector in Madrid after 10 years of studying hard to become one, and a third one, still a student, had had a few jobs, but must have found it too much hard work. The appeal judge decided that, even though the obligation to support children did not cease when they became of legal age (18 years), it was not justifiable for 3 fully qualified university graduates over 30 years old to expect being maintained by the father. He added he could not accept their plight and expectations, in this day and age, and in a modern society full with opportunities, to be fed by the male progenitor as the contrary would equate to favouring a passive fight for life that could be end up in “social parasitism”. Needless to say, the Canary Islands, where these boys were once based, have a whopping 27% unemployment that has even merited an article by the Financial Times.

So now on to the more practical side of this post, it being the obligation of the non-custodian progenitor (non-resident parent in English legal terminology) to maintain the children after a divorce in Spain (or separation for that matter) is under way, and for a good few 10 years after they become legal adults (18), I thought that publishing the amounts due by him/her (in 95% of the cases it’s the father) would help have an idea of what should be expected to be paid, since knowing this information, and consequentially what a judge would be ruling on, will reduce the litigiousness of the marriage break up.

The tables below show what should be expected to be paid by the non-resident parent depending on 2 variables, the number of children and the employment situation of the resident parent. Additionally, the courts may introduce other variables that will reflect personal and family circumstances, socio-economic environment issues, location, etc., that will singularize the final amount to be paid in each separation and/or divorce case.

Income 1 Child 2 Children 3 Children 4 Children
800 181,6 263,3 299,6 350,5
875 198,6 288,0 327,7 383,3
950 215,7 312,7 355,8 416,2
1025 232,7 337,4 383,9 449,1
1100 249,7 362,1 412,0 481,9
1175 266,7 386,8 440,1 514,8
1250 283,8 411,4 468,2 547,6
1325 300,8 436,1 496,3 580,5
1400 317,8 460,8 524,4 613,4
1475 334,8 485,5 552,5 646,2
1550 351,9 510,2 580,6 679,1
1625 368,9 534,9 608,6 711,9
1700 385,9 559,6 636,7 744,8
1775 402,9 584,2 664,8 777,6
1850 420,0 608,9 692,9 810,5
1925 437,0 633,6 721,0 843,4
2000 454,0 658,3 749,1 876,2
2075 471,0 683,0 777,2 909,1
2150 488,1 707,7 805,3 941,9
2225 505,1 732,4 833,4 974,8
2300 522,1 757,0 861,5 1007,7
2375 539,1 781,7 889,6 1040,5
2450 556,2 806,4 917,6 1073,4
2525 573,2 831,1 945,7 1106,2
2600 590,2 855,6 973,8 1139,1
2675 607,2 880,5 1001,9 1171,9
2750 624,3 905,2 1030,0 1204,8
2825 641,3 929,8 1058,1 1237,7
2900 658,3 954,5 1086,2 1270,5
2975 675,3 979,2 1114,3 1303,4
3050 692,4 1003,9 1142,4 1336,2
3125 709,4 1028,6 1107,5 1369,1
3200 726,4 1053,3 1198,6 1402,0
3275 743,4 1078,0 1226,7 1434,8
3350 760,5 1102,7 1254,7 1467,7
3425 777,5 1127,3 1282,8 1500,5

The table below is applicable in the event that both parents have an income:

Income 900 1050 1200 1350 1500 1650 1800 1950 2100 2250 2400 2550 2700 2850
600 190 225 259 293 327 361 395 429 463 497 531 565 599 633
650 190 224 258 292 326 360 394 428 462 496 530 564 598 632
700 188 222 257 291 325 359 393 427 461 495 529 563 597 631
750 187 221 255 289 323 358 392 426 460 494 528 562 596 630
800 186 220 254 288 322 356 390 424 459 493 527 561 595 629
850 185 219 253 287 321 355 389 423 457 491 526 560 594 628
900 184 218 252 286 320 354 388 422 456 490 524 558 592 627
950 183 217 251 285 319 353 387 421 455 489 523 557 591 625
1000 182 216 250 284 318 352 386 420 454 488 522 556 590 624
1050 180 215 249 283 317 351 385 419 453 487 521 555 589 623
1100 179 213 247 281 316 350 384 418 452 486 520 554 588 622
1150 178 212 246 280 314 348 382 417 451 485 519 553 587 621
1200 177 211 245 279 313 347 381 415 449 484 518 552 586 620
1250 176 210 244 278 312 346 380 414 448 482 516 550 585 619
1300 175 209 243 277 311 345 379 413 447 481 515 549 583 617
1350 174 208 242 276 310 344 378 412 446 480 514 548 582 616
1400 173 207 241 275 309 343 377 411 445 479 513 547 581 615
1450 171 205 239 274 308 342 376 410 444 478 512 546 580 614
1500 170 204 238 272 306 341 375 409 443 477 511 545 579 613
1550 169 203 237 271 305 339 373 407 442 476 510 544 578 612
1600 168 202 236 270 304 338 372 406 440 474 508 543 577 611
1650 167 201 235 269 303 337 371 405 439 473 507 541 575 609
1700 166 200 234 268 302 336 370 404 438 472 506 540 574 608

* NOTE: The amounts in this table have to be multiplied by 1.45 if there are 2 children, 1.65 in the case of 3 children, and 1.93 for four children. The amounts in the vertical axis correspond to the monthly income of the custodian progenitor (resident parent), and the amounts in the horizontal axis correspond to the non-custodian progenitor, both in in Euros.

The amount specified for child maintenance is subject to modification in the event of loss of job by the paying parent or increase of his/her living costs, or because the children receive an income as a result of getting a regular job or reach an age where it is no longer reasonable or ethical to maintain the payments (as per the case study of the Canary family).

Finally, Spanish legislators have introduced new legal reinforcement to deal with non-paying parents, inclusive of jail sentences, so if you are in this situation make sure that you don’t miss 2 consecutive payments or 4 non-consecutive payments, because prison terms are then readily available!

Family Law, Litigation , ,