Posted in: Civil Law, Family Law, Legal
Yes. Your spouse does not have to agree to the divorce for you to apply for one in Spain.
If your marriage has broken down but your husband or wife refuses to sign documents, this does not necessarily prevent you from ending the marriage.
Spanish law allows a divorce to be requested by one spouse alone. Where there is no agreement between the parties, the matter can proceed through the Spanish Courts as a contested or non-amicable divorce.
This can be particularly important for people who have been separated for some time but find that their spouse is delaying matters or refusing to cooperate.
In Spain, you do not have to have your spouse’s approval to seek a divorce. Of course it is better and cheaper if you do.
If both spouses agree on the divorce and its consequences, an amicable procedure may be possible. However, where one spouse refuses to cooperate or the parties cannot agree on the arrangements, the divorce can proceed through the Courts.
The disagreement may therefore affect how the divorce is dealt with, rather than whether you can ultimately obtain a divorce. Your spouse may disagree about:
• Where the children should live
• Contact arrangements
• Child maintenance
• Financial support between spouses
• The use of the family home
• The division of assets
• Debts and financial responsibilities
• Other consequences of the separation
These issues can make the proceedings more complicated and non-emicable, but they do not necessarily prevent the marriage itself from being dissolved.
A contested divorce is essentially a divorce where the spouses cannot reach agreement on the arrangements arising from the breakdown of the marriage.
Instead of both parties signing an agreed settlement, the Court is asked to determine the matters that remain disputed.
Molina Solicitors help with amicable and non-amicable divorce proceedings. We try the amicable route, wherever possible first. Where the parties are not in agreement, a divorce must be dealt with through the Court. But there is always the option to settle before a hearing.
A contested divorce can therefore involve two separate questions:
1. Ending the marriage
and
2. Deciding the arrangements that follow the separation.
The second part is often where the greatest disagreement arises.
A common concern is:
“My spouse refuses to sign anything. Can I still get divorced?”
Generally, yes. You should not assume that your spouse’s refusal to sign an agreement means that you are trapped in the marriage.
If an agreement cannot be reached, we can advise you about commencing the appropriate Court proceedings. Your spouse will have the opportunity to respond to the proceedings and put forward their position, but they cannot simply prevent you from applying for a divorce by refusing to sign an agreement.
The Spanish Civil Code expressly provides for divorce at the request of one spouse.
Refusing to cooperate informally is different from refusing to participate after Court proceedings have started.
If your spouse does not respond, cannot be contacted, or lives in another country, the procedure can become more complicated because the Court must deal with notification and procedural requirements.
For someone living outside Spain, this can be especially relevant.
For example, one spouse may live in Spain while the other lives in the UK or another European country. In such circumstances, it is important to establish where proceedings should be brought and how the other spouse should be formally notified.
This is one reason why international divorce cases should be assessed individually rather than assuming that the procedure will be identical to a divorce in another country.
Where there are children, a contested divorce can involve considerably more than the dissolution of the marriage.
The Court will need to consider arrangements concerning the children and these come first, including matters such as:
• Where the children will live
• Time spent with each parent
• Schooling
• Holidays and travel
• Child maintenance
• Important decisions affecting the children
• Relocation to another area or country
The welfare and circumstances of the children therefore need to be considered alongside the divorce itself. This can become particularly sensitive where one parent wants to move with the children or where the parents live in different countries.
Molina Solicitors also deals with child custody and applications concerning a change of residence for a child or parent.
A refusal to cooperate can also cause practical difficulties where the couple owns property together.
For example, one spouse may want to sell the family home while the other refuses. Alternatively, one spouse may want to retain the property and buy out the other’s interest.
Divorce and property ownership are related but can involve different legal and financial considerations. It is therefore important not to assume that obtaining the divorce automatically resolves ownership of a jointly owned Spanish property.
In some circumstances, a separate legal procedure may be required to deal with jointly owned property if agreement cannot be reached.
There is no single timeframe that applies to every contested divorce.
The duration can depend on matters such as:
• Whether the other spouse responds
• Whether there are children
• How many issues remain disputed
• Whether financial matters are complicated
• Whether property is involved
• Whether either spouse lives outside Spain
• Whether additional evidence is required
• The workload of the relevant Court
An uncontested divorce can often be considerably simpler than a contested case because the parties have already reached agreement.
Where agreement is impossible, however, it is usually better to obtain proper legal advice early rather than allowing an unresolved situation to continue indefinitely.
If the matter has to proceed through the Spanish Courts, you should obtain advice from a lawyer experienced in Spanish family proceedings.
Court proceedings in Spain have their own procedural requirements, and a divorce involving children, property or international elements raises additional issues.
When a marriage has broken down, dealing with a spouse who refuses to communicate or agree to anything can be extremely frustrating. However, “my spouse will not agree to the divorce” does not necessarily mean that you cannot get divorced in Spain.
The important question is what your particular circumstances are and which issues actually remain disputed.
If you are facing a non-amicable divorce in Spain, particularly where there are children, property or international issues involved, obtaining legal advice at an early stage can help you understand your options and avoid unnecessary delays.
We assist clients with family-law matters including amicable and non-amicable divorce, separation and child-related proceedings.