Sources of Spanish law
Spanish civil law, of which family law is a part, is regulated by the Spanish civil Code (‘Codigo Civil’, CC). In addition, some autonomous communities have jurisdiction to make their own laws, which have the same status as national laws. Court decisions (‘jurisprudencia’) are relevant to the interpretation of codified rules.
The Spanish Constitution of 1978 (‘Constitucion Espanola’, CE) lays down guarantees on which laws, including family law, must be based. Spain is also a party to several international conventions applicable to family matters.
THE CIVIL CODE
Marriage (capacity, formalities, registration etc), marital rights and duties, nullity, separation and parental rights and duties are regulated by the Civil Code. Regime of matrimonial property is also laid down in it.
LAW MADE BY THE AUTONOMOUS COMMUNITIES
The Basque Country (Vizcaya-Alava); Catalonia; the Balearic Islands; Galicia; Aragon; and Navarre are the communities which have power to legislate. These have their own matrimonial regimes. The laws made by these communities are applied in the territory of that community and have priority over Civil Code rules.
RULES OF INTERREGIONAL LAW (‘DERECHO INTERREGIONAL’)
When different regional laws are applied to a legal relationship, applicable law is determined by a system of interregional law (‘derecho interregional’). ‘vecindad civil’ determines the personal law. Legal effects of marriage are determined by special rules, guardianship, and the parent-child relationship.
Other than separation and divorces which are heard under a special procedure in the family courts (‘Juzgados de primera Instancia’), family cases are heard in the ordinary civil courts of first instance (‘Juzgados de Primera Instancia’). Appeal is to the appropriate court of appeal (‘Audiencia Provincial’), and then to the Supreme Court (‘Tribunal Supremo’). Cases involving a potential breach of a fundamental right can be brought before the Constitutional Court (‘Tribunal Constiticional’).
The Courts in Spain have jurisdiction to entertain proceedings when:
- both spouses have Spanish nationality;
- both spouses are resident in Spain;
- the plaintiff is Spanish and has his or her habitual residence in Spain, whatever the nationality and residence of the defendant; or
- the defendant, whatever his or her nationality, is resident in Spain.
Adjudication of disputes
According to the general rules of civil procedure, family law disputes are heard. In case of separation and divorce cases, special procedural rules are applied according to the Law of Civil Procedure (2000).
In the presence of an ‘abogado’ and a ‘procurador de los tribunales’ family cases are heard. The abogado acts and pleads on behalf of the client in court proceedings. The procurador is responsible for the conduct of the case in court. Some abogados specialise in family law, and some colegios de abogados (‘bar association’) have family law associations. A foreign lawyer who will deal with all aspects of the case, including instructing a procurador, needs to approach an abogado first.
On the basis of applicant’s means, legal aid is available. Application must be made in Spanish to a bar association. Commission of legal aid (‘Comision de Asistencia Juridica Gratuita’) determines the eligibility for legal aid. An appeal lies against refusal. A lawyer is provided to the person entitled to legal aid. When the property is recovered or preserved in court proceedings, legal aid may have to be repaid. Legal aid is also repaid when the financial circumstances of the recipient greatly improved within the three years of its grant.
There is an availability of emergency legal aid.
For the residents and citizens of Europe, legal aid is available. For non-resident foreigners in criminal cases also, it is available.
Domicile is defined as the place where a person has his or her habitual residence.
Conflicts of jurisdiction
Conflicts of jurisdiction will be dealt with either according to Council Regulation 1347/2000 of May, on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility (Brussels II) (in force in Spain from 1 May 2001), or, if ‘Brussels II’ does not apply, according to the provisions of article 23.2 and 3 of the Organic Judicial Power Act (LOPJ).
Marriage: CONTRACTING A VALID MARRIAGE
A marriage (civil or religious) must be celebrated in accordance with civil formalities laid down in Civil Code, in order to have a civil legal effect. Any religious formalities have been recognised by Spanish state.
A marriage must be authorised by a judge (or other official) of the Registro Civil (‘Civil Registry’) where either party is domiciled. A written application is to be made by either party to the civil registry providing certain information and stating there are no impediments to the marriage. The judge can authorise or refuse the marriage, after public notice of marriage. An appeal against refusal is permitted. Within a year of authorisation, marriage must take place.
A judge, in the presence of two witnesses, in whose presence consent is given; a marriage is celebrated. A marriage is celebrated by a mayor or his representative. Articles of Civil Code defining marital rights and duties are read by the judge or the mayor, during the ceremony. The judge or the mayor declares them married, if both parties consent to the marriage. The judge or the mayor Register and issues the marriage certificate.
The religion must be registered and its formalities recognised by the Spanish state. If a religious marriage has been registered in the Registry then only it will have legal effect in respect of third parties.
The Minister of Justice can authorise a secret marriage in exceptional circumstances, which means the one celebrated without notice. In this, the third parties will not have legal effect, only the spouses will have it. The marriage can be celebrated without preliminary formalities, when the death of a party is imminent.
Capacity and consent to marry: Valid consent and capacity to marriage must be there by the parties.
CAPACITY TO MARRIAGE
The following requirements must be satisfied:
- Each party must be aged 18 or at least 16 and emancipated. A person under 18, if non-emancipated, can be given judicial permission to marry.
- The parties must not be within the prohibited degrees of relationship.
- The parties must not be already married.
- A party must not have been convicted of intentionally killing (or procuring the killing of) his or her spouse or the other party’s spouse in order to marry.
- The parties must be respectively male and female.
CONSENT TO THE MARRIAGE: The parties must validly consent to the marriage at the time of marriage.
The following grounds may invalidate consent:
- Personal circumstances. Mental illness can invalidate consent, although a judge can authorise a marriage where there is favourable medical evidence.
- Defective consent. A marriage is void if a party does not validly consent to the marriage, due to mistake, duress or serious fear. Mistake invalidates consent if there is a mistake as to the other party’s identity or physical or mental characteristics existing before or at the time of marriage (e.g., disease, sexual problem, impotence, drug addiction etc,), provided those characteristics affected the decision to marry. Consent is also vitiated where there is serious fear or duress, whether caused by external circumstances, by the other party to the marriage, by a third party, or by life-endangering physical causes.
Marriages of Spanish citizens abroad and recognition of foreign marriages
When a party is a Spanish national, a marriage can be celebrated in a Spanish consulate. A marriage is celebrated in Spain according to the Spanish law or parties’ own law when both the spouses are foreigners. In Spain, a foreign marriage is recognised.
NULLITY OF MARRIAGE
Failure to satisfy the capacity and consent requirements renders a marriage void and a declaration of nullity can be sought. Filing of declaration is done in the Civil Registry. Generally, in the Ecclesiastical Courts nullity actions are brought. These actions are not as common as divorces.
Grounds for nullity
The grounds for nullity are:
- lack of capacity;
- lack of consent due to the absence of a free and conscious wish to marry;
- lack of valid consent due to mistake as to person, violence, duress or serious fear; and
- non-compliance with marriage formalities, except where the formalities appeared to be correct, and the parties acted in good faith.
An annulment at any time during the life of the parties can be applied by a party (or both parties) to the marriage or a person with a legitimate interest with the following exceptions: only the parties to an under-age marriage or their parents or guardians can apply, and only while the party is under age; and only the party who gave defective consent can apply where there was lack of valid consent.
Validation of a void marriage
A void marriage can be rendered valid where:
- one party (or both) is under age and the parties cohabit during the year following majority; or
- the ground is lack of consent due to mistake or fear and the parties cohabit during the year after the disappearance of the defective consent.
The legal consequences of marriage are applied to a party (e.g., a spouse retains Spanish nationality and has a right to any property under the applicable property regime), where a party enters into a putative marriage (a marriage contracted in good faith which appeared to be valid).
Canonical declarations of nullity
Canonical declarations of nullity on grounds laid down by the state can be made by the Catholic Church. To have a civil effect for a canonical declaration of nullity, a petition must be brought before a judge in the spouses’ domicile or in the case of a process by mutual agreement, the last domicile of the couple or the domicile of the defendant.
Finance and property on nullity
These provisions are similar to those on divorce:
- A party who married in good faith can exclude the conjugal partnership regime and opt for the participation regime.
- A spouse who married in good faith may be entitled to compensation by way of maintenance (alimony) for any damage caused by the annulment.
THE LEGAL EFFECTS OF MARRIAGE
National law common to both spouses at the time of marriage governs the personal and economic relations of spouses, or by the law of nationality or domicile (habitual residence) of either party chosen by both parties in an attested public document made before the solemnisation of marriage.
For the validity and interpretation of the foreign law, certificated details of an applicable foreign law must be provided by a legal authority in the foreign country concerned and a statement from two jurists of that country.
Same rules are applied when both spouses are Spanish nationals but with a different ‘vecindad civil’.
Marital rights and duties
Both spouses have equal rights and duties. These are non-negotiable so that any agreement modifying them is void. Spouses must live together, provide mutual support and assistance (including financial support), respect each other, remain faithful and must act in the best interests of the family.
The residence of the spouses
It has to be stated by the spouses, which shall be their domicile (habitual residence) and, where they have several homes, which home shall be the matrimonial home. A judge can decide the matter by taking into account the interests of the family, where the spouses cannot agree.
Nationality of origin can be retained by a spouse, although, after one year of legal residence in Spain after the celebration of marriage, a foreign national married to a Spanish national can acquire Spanish citizenship.
‘Vecindad’ of origin on marriage can be retained by a Spanish citizen, but can opt for the ‘vecindad civil’ of the other spouse by making a declaration before an official of the Civil Registry.
Duty to provide financial support
It is the mutual duty of spouses to provide each other and the family with financial support. Maintenance and education of the children along with the family expenses is their responsibility. Spouses cannot contract out of these obligations, but can agree on how they can be fulfilled, proportionate to their respective contribution in money or money’s worth to the household. They are jointly and severally liable for these duties. The method of contribution depends on the property regime governing the relationship.
To ensure that spouses are fulfilling their financial obligations, judge can make orders.
Income tax can be paid as a unit or individually by the married couples. Tax payers with whom aged relatives and children are living, and for those whose earnings are below threshold, deductions are made.
Parties are taxed separately after separation or divorce. Compensatory payments made on divorce or separation is tax deductible for the payer, but represents income for the payee. Contribution of financial support made by a party towards family expenses does not reduce the income of the payer and constitutes exempt income for the payee. Tax payments are affected by judicial decisions only.
INHERITANCE AND DONATIONS TAX
Regarding taxation on inheritance and donations, there are certain exemptions and reductions. Existence for exemptions is for older relatives, spouses and also adults and minors. Tax rates on inheritance and donations for relatives, descendants and spouses are notably lower than those which apply in the case of more distant relatives or non-family members.
Protection against domestic violence
The court has no jurisdiction to make orders preventing one party to a marriage being violent to the other, although before divorce proceedings have been commenced, the victim can ask the court in interim proceedings (‘medidas provisionalisimas’) to order the other party to leave the matrimonial home. Assistance of police and invocation of criminal law can be looked by the victim of violence.
There is a regime of community of property with the exception of certain autonomous communities, in Spain; unless a marital property agreement is made by the spouses to the contrary.
Matrimonial property regimes
Matrimonial property regimes exist under the Civil Code and under the law of certain autonomous communities. The Civil Code regime is applied, unless there is a marital property agreement to the contrary or the law of an autonomous community provides otherwise. There are rules laid down for the payment of expenses, ownership and administration of property and for termination of the regime, e.g., on death or divorce.
THE CIVIL CODE MATRIMONIAL PROPERTY REGIME
Under the Civil Code regime of community of property (‘gananciales’), the spouses own the following in common (i.e., equally):
- property purchased during marriage;
- property acquired during marriage by the labour of each spouse;
- profits, rents or interests from assets owned during marriage by each spouse;
- business established during marriage by either spouse with common funds.
Any other property belongs to each spouse separately. Administration and disposition of the property owned in common must be done by both spouses. On the death, divorce, nullity or judicial separation, or when spouses agree to be subject to a different property regime, community of property is terminated.
OPTIONAL REGIMES RECOGNISED BY THE CIVIL CODE
The Civil Code also recognises and regulates the following property regimes which spouses can opt for in a marital property agreement:
- ‘Participation’ (‘community of gains’). Under this regime each spouse has the right to administer, use and dispose of his or her own property separately during marriage, but has a right to share any profits obtained during marriage when the regime is terminated (e.g., on death, separation or divorce or when there is a new property agreement).
- ‘Separacion de bienes’ (separation of property). Under this regime each spouse owns separately any property owned when the regime is created and any subsequently acquired property. Each spouse administers, uses and disposes of his or her own assets separately. On termination of marriage, a spouse cannot claim anything from the other spouse’s estate on the basis of contribution to that estate, except for compensation for domestic work.
MATRIMONIAL PROPERTY REGIMES IN CERTAIN AUTONOMOUS COMMUNITIES
- Catalonia and the Balearic Islands. The regime is that of separation of property.
- Navarre. The regime is that of ‘sociedad legal de conquistas’, whereby the following property is owned in common: assets designated by the spouses as being commonly owned; property acquired with income from those assets; income arising from the personal work of the spouses; and any profits generated from the common assets. All other assets are owned separately. The management and disposal of assets held in common must be made by both spouses.
- Aragon. The regime is ‘communidad aragonesa’ or ‘consorcio conyugal’ or ‘sociedad conyugal tacita’, whereby the following property is owned in common: immovable goods acquired by either spouse during marriage; income from each spouse’s work; and any profit arising from assets (owned separately or jointly) or from movable goods. All other property is owned, managed and disposed of separately. Property owned in community is managed and disposed of jointly, although a judge can act on behalf of a spouse who unjustifiably refuses or who lacks capacity to act. On dissolution of the community, property must be liquidated, but on the death of a spouse, the community regime continues to apply to the surviving spouse and any heir of the deceased spouse (the ‘comunidad conyugal continuada’). Continued matrimonial community enables assets which are difficult to divide (e.g., a business or company) to continue.
- The Basque country (Vizcaya-Alava). The regime is that of ‘communicacion foral de bienes’ (community of goods), whereby all immovable goods, regardless of origin, are held in common by the spouses. At the end of the regime, the rules are similar to those of the Civil Code regime.
Marital property agreements
Before or during marriage, spouses of full age may, make a marital property agreement (‘capitulos matrimoniales’), governing matrimonial property and any other legal effects of marriage. Property ownership is governed by the Civil Code or the law of spouses’ autonomous community, where there is no agreement. An agreement can also be made by a foreign citizen, provided that his or her own national law does not forbid it.
The marriage agreement must be registered at the Civil Registry and signed in the presence of a notary. The agreement is open to public inspection. Any term which is contrary to law or common custom or which discriminates against either party cannot be included in the agreement. ‘Registro de la Propiedad’ (Property Register) records the amendments in respect of immovable property.
Liberty for debts during marriage (‘domestic protestas’)
According to family circumstances, both spouses provide for the needs of the family. The spouse who provides for the family (e.g., who pays for basic goods, children’s education, health expenses etc) is liable for any debts incurred, although liability to third parties depends on the applicable property regime.
Third parties must seek payment from the common property of both spouses, where there is community of property, or from the party who was party to the contract.
Third party must seek payment from the spouse who was party to the contract, where there is a separation of property. Parties are jointly and severally liable for the domestic debts.
Spouse has a right to be reimbursed by the other spouse when the property regime comes to an end, if that spouse has paid household expenses.
The matrimonial home
Ownership of the matrimonial home depends on the property regime governing the marriage, but disposal of any rights in the home, however owned, must be effected by both spouses. Judicial authorisation of the transaction can be granted, where a spouse refuses to consent in this matter unjustifiably.