FAMILY LAW

International family Law. Legal separation in Spain

Since March 2001 there is a new european Law, usually called Brusells II, by which the legal separation and the divorce of a couple has to take place in the country in which they are usually living (where they have their residency). Therefore, citizens living in Spain, have to be legaly separated or divorced under a spanish Court.

That the legal separation or the divorce has to be decided by a spanish Judge, does not mean that spanish law is to be always aplied to the trial. If both parties have the same nationality, and this one is not the spanish one, then, the spanish Judge will have to apply the Law of the common nationality of both parties. That means that if two english people want to legaly separate when living in Spain, then their legal separation will take place in a spanish Court, but under english Law. The foreign Law has to be supplied by the Partie which wants that foreign Law to be applied. In case the foreign Law is not properly supplied by the interested party, then the Judge should apply spanish Law.

If there is no common nationality, then it is to be applied the Law of the country in which both parties live. In this case spanish law, if the parties live in Spain.

One of the consecuences of a legal separation or a divorce, is the disolution of the marital economic contract. The assets of the family will be divided.

When it comes to International Private Law, there is again a decision to be made in order to know which Judge should deal with the case, and what law is to be applied by the judge.

If both parties live in Spain, then the legal separation or the divorce will be done under a spanish court. That does not mean either, that spansh law is to be applied for the disolution of the marital economic contract.

The law to be applied to the disolution of the marital economic contract, is that of the common nationality. If there is no common nationality, then the parties can agree to apply the national law or the law of the country of residency of any of the parties. In order for that agreement to be valid, it has to be signed before the marriage actually takes place. If that agreement was not signed, then it should be applied the law of the country in which the coupled lived right after the marriage. In case it was not posible to determine which was the residency after the marriage, then it would be applied the law of the country in which the marriage took place.