JURISDICTIONAL REQUIREMENTS FOR DIVORCE IN SPAIN

The general rule among EU citizens:

Regulation (EU) No 2201/2003 (‘Brussels II bis’), replaced as of 1 August 2022 by Regulation (EU) 2019/1111 (‘Brussels II ter’), determines which courts have jurisdiction over divorce, legal separation or marriage annulment proceedings.

Jurisdiction (Article 3 of Regulation 2019/1111):

Spanish courts have jurisdiction if:

• Both spouses are habitually resident in Spain; or
• Both spouses were last habitually resident in Spain, provided that one of them still resides there; or
• The respondent is habitually resident in Spain; or
• In the case of a joint application, if one of the spouses is habitually resident in Spain; or
• The applicant is habitually resident in Spain and has resided there for at least one year immediately prior to filing the application; or
• The applicant is habitually resident in Spain and is a Spanish national, having resided there for at least six months prior to the application; or
• Both spouses are Spanish nationals, regardless of their place of residence.

JURISDICTION IN PROPERTY MATTERS: DIVISION OF ASSETS AND FINANCIAL ARRANGEMENTS

The division of assets upon divorce may be governed by:

Matrimonial property regime.

This is determined by:

• Regulation (EU) 2016/1103, applicable since 29 January 2019, if both spouses are nationals or residents of participating Member States;
• In other cases, by the rules of Spanish private international law (Articles 9.2 and 9.3 of the Civil Code, and Article 22 quater of the Organic Law on the Judiciary).

According to Article 22 quater of the Organic Law on the Judiciary, Spanish courts shall have jurisdiction over matrimonial property regimes where:

• Both spouses are habitually resident in Spain; or
• One of the spouses is habitually resident in Spain and is a Spanish national; or
• Both spouses are Spanish nationals, even if residing abroad.

Financial arrangements and maintenance obligations:

Regulation (EC) No 4/2009 (on maintenance obligations) confers jurisdiction on the courts:

• Of the place of habitual residence of the respondent; or
• Of the maintenance creditor; or
• Of the court with jurisdiction in matrimonial proceedings, where the maintenance claim is ancillary to the divorce.

When a petition for divorce, legal separation or annulment is filed, the Spanish court must examine ex officio whether it has international jurisdiction before ruling on the merits (Article 36 of the Spanish Civil Procedure Act and Article 22 of the Organic Law on the Judiciary).

The court takes into account the following:

• Habitual residence of the spouses: Article 3 of Regulation (EU) 2019/1111 (‘Brussels II ter’).
  The court assesses where each spouse has the centre of their stable life, considering factors such as the duration of residence, intention to remain, and personal, family and social ties.
• Last common habitual residence of the family: Article 3 of Regulation (EU) 2019/1111.
  If one spouse still resides there, it may suffice to establish jurisdiction.
• Nationality of the spouses: Article 3.1(b) of Regulation 2019/1111 and Article 22 of the Organic Law on the Judiciary. If both spouses are Spanish nationals, Spanish courts have jurisdiction, even if they reside abroad.
• Residence of the respondent or applicant: Article 3 of Regulation 2019/1111.
  Jurisdiction may be based on the habitual residence of the respondent in Spain, or the applicant’s habitual residence, provided they have lived in Spain for at least six months (if Spanish national) or one year (if non-Spanish national) immediately before filing the petition.
• Matrimonial property regime or assets located in Spain:
  Regulation (EU) 2016/1103 and Article 22 quater of the Organic Law on the Judiciary. In matters concerning the division of assets or liquidation of community property, the court considers whether there is a substantial connection to Spain, either through the property regime or the location of the assets.
• Existence of parallel proceedings: Articles 19 and 20 of Regulation 2019/1111. If proceedings involving the same cause of action and between the same parties are already pending before a court in another Member State, the Spanish court must suspend its proceedings.
• International conventions: in cases involving non-EU countries, the applicable bilateral or multilateral conventions ratified by Spain will apply.
• Express or implied submission (limited): in certain circumstances, if both parties appear before the court without contesting jurisdiction, this may be considered as tacit acceptance of the court’s jurisdiction.

CIRCUMSTANCES IN WHICH SPAIN WOULD SUSPEND OR DECLINE JURISDICTION

• If proceedings were initiated earlier in another EU Member State: the Spanish court must suspend its proceedings and subsequently decline jurisdiction. (Article 19 of Regulation 2019/1111)
• Neither spouse has Spanish nationality or residence, and no assets are located in Spain: the Spanish court must decline jurisdiction. (Article 22 of the Organic Law on the Judiciary)
• Both spouses are Spanish nationals residing abroad: Spanish courts have jurisdiction based on shared nationality.
• One of the spouses is habitually resident in Spain: Spanish jurisdiction, which is the primary criterion.
• Existence of a valid choice-of-court agreement (property matters): the Spanish court must decline jurisdiction if the agreement designates a court in another State.
• Concurrent jurisdiction with a non-EU country where no lis pendens exists: Spanish courts may proceed unless there is evidence of fraud or abuse of process.

Jurisdiction is distinct from the applicable law. The applicable law is, however, relevant before the Spanish courts.

Once a Spanish court declares itself competent to hear a divorce case or its financial consequences, it must determinede the substantive law applicable to the merits of the case.

The applicable law is determined as follows:

• In divorce and legal separation proceedings: the common habitual residence or the law chosen by the parties applies. (Regulation (EU) No 1259/2010 – Rome III)
• Matrimonial property regime: the law of the first common habitual residence of the spouses after the marriage applies. (Regulation (EU) 2016/1103)
• Maintenance obligations: the law of the habitual residence of the maintenance creditor applies. (2007 Hague Protocol and Regulation (EC) No 4/2009)
• Succession: the law of the habitual residence of the deceased at the time of death applies. (Regulation (EU) No 650/2012)

In Spain, divorce is not fault-based but rather based solely on the will of one or both spouses.

MOTIVES FOR DIVORCE IN SPAIN

Current system: no-fault divorce

No cause, reason or fault is required on the part of either spouse. It is sufficient for one of them to file for divorce, without the need to allege adultery, abandonment or any other misconduct.
The only time requirement is that at least three months must have elapsed since the marriage was celebrated. (Articles 81 and 86 of the Spanish Civil Code)

Exceptions: the three-month period is not required where there is a proven risk to the life, physical integrity, liberty, moral integrity, or sexual freedom and indemnity of the applicant or of the children. (Article 81.2 of the Civil Code)

TYPES OF DIVORCE ACCORDING TO THE PROCEDURE FOLLOWED

Uncontested divorce (Articles 82 to 84 of the Civil Code and Articles 777 et seq. of the Civil Procedure Act)

Requirements:

• At least three months of marriage;
• Agreement between both spouses on:
• The dissolution of the marriage;
• Personal and financial arrangements (custody, child maintenance, use of the marital home, compensatory pension, etc.);
• These terms must be reflected in a settlement agreement signed by both parties.

Procedure:

• Can be filed before the court (if there are minor or dependent children); or
• Before a notary public or a court clerk (letrado de la administración de justicia) if there are no minor or dependent children and both parties agree.

Approximate duration: between one and three months, provided there is no opposition. The timeframe largely depends on the workload and caseload of the relevant court.

Contentious divorce (Article 770 of the Civil Procedure Act)

Applicable when:

• There is no agreement between the spouses; or
• One of them does not wish to divorce; or
• No consensus is reached on the measures (custody, pensions, use of the family home, etc.).

Procedure:

• Divorce petition filed by one of the spouses (Article 769 of the Civil Procedure Act);
• The other spouse must file a statement of defence or reply within 20 working days;
• Oral hearing (trial), during which evidence is presented and the parties are heard;
• Judgment is issued, which decrees the divorce and sets out the applicable measures.

Approximate duration: between six months and one year, depending on the court and the complexity of the case.

Service within Spain

Jurisdiction: service of process is carried out by the court of first Instance handling the divorce proceedings.

Address for service:

• The petition must state the actual or known domicile of the respondent.
• If the address is unknown, the court may order investigations to locate it (e.g. inquiries with the municipal register, the Directorate-General for Traffic, or the Social Security system).

Methods of service:

• By registered mail with acknowledgement of receipt; or
• By a court officer (judicial clerk); or
• By electronic appearance of the court-appointed legal representative (procurador), in accordance with Article 152 of the Civil Procedure Act.

If the respondent cannot be located:

• Service may be made by edictal notification through publication in the Official State Gazette (Boletín Oficial del Estado), under Article 164 of the Civil Procedure Act;
• However, this method may only be used as a last resort, once all reasonable efforts to locate the respondent have been exhausted.

International service

If the respondent resides in another EU Member State: Regulation (EU) 2020/1784 applies. This regulation provides for:

• Direct communication between designated transmitting and receiving authorities in each Member State;
• Service by personal delivery or by registered mail, ensuring that the addressee receives a translation they can understand;
• The recipient’s right to refuse be notify if they do not understand the language used (Article 12).

If the respondent resides in a non-EU country: the 1965 Hague Service Convention applies, provided the State is a contracting party. If not, service must be carried out via diplomatic or consular channels, in accordance with Article 273 of the Organic Law on the Judiciary.

In both cases, the Spanish court must ensure that:

• The respondent has received the notification in sufficient time and in an appropriate manner to exercise their right of defence; and
• The service complies with the guarantees of effective notice (requirement for the recognition and enforcement of the judgment abroad).

JOINT DIVORCE PETITION (‘‘MUTUAL CONSENT’’)

A joint petition for divorce may be filed.

This is governed by Articles 82 to 84 of the Spanish Civil Code and Article 777 of the Civil Procedure Act (mutual consent proceedings).

Spanish law expressly allows for divorce by mutual consent, either:

• Judicially, where there are minor or dependent children; or
• Extra-judicially, before a notary public or a court clerk if there are no minor or dependent children.

Foreign marriages

Yes, Spain recognises marriages celebrated abroad, provided that:

• They were entered into in accordance with the law of the place of celebration (lex loci celebrationis), or
• They comply with the personal law of either of the spouses. (Article 49 of the Spanish Civil Code)

Foreign civil partnerships / civil unions

Spain does not automatically recognise foreign civil unions as equivalent to marriage, although they may have limited legal effects, depending on the circumstances.

This is due to the fact that:

• Spanish law distinguishes between marriage and domestic partners (parejas de hecho);
• Domestic partners are governed by autonomous community laws, rather than a single nationwide law;
• Therefore, the recognition of a foreign civil union will depend on:
• Its legal nature in the country of origin; and
• Its equivalence to the concept of domestic partners as recognised under Spanish law.

Customary marriages

Customary marriages are recognised in Spain only if:

• They are valid under the personal law of the parties (e.g. the national law of both spouses); and
• They do not conflict with Spanish public policy.

Limitations: Spain does not recognise customary marriages that:

• Are not evidenced in writing or through registration; or
• Contravene fundamental principles of Spanish law (e.g. polygamy, child marriage, or forced marriage).

However, if a customary marriage is valid, monogamous, and officially recognised by the authorities in the country of origin, Spain may recognise it, provided that the corresponding marriage certificate is duly legalised.

Religious marriages

Yes, Spain recognises religious marriages, whether celebrated in Spain or abroad, as long as they comply with the marriage legal requirements in Spain.

Yes, Spain fully recognises same-sex marriages.

Legal basis:

• Act 13/2005 of 1 July, which amended the Spanish Civil Code regarding the right to marry.
• Reform of Article 44 of the Civil Code, which now provides: “Marriage shall have the same requirements and effects regardless of whether the spouses are of the same or different sex.”

Same-sex couples enjoy full legal equality in civil marriage.

Same-sex marriages celebrated abroad

Such marriages are also recognised in Spain, provided they are valid under the law of the country of celebration and do not contravene Spanish public policy. (Article 12.3 of the Civil Code)

Same-sex marriages celebrated prior to 2005 in Spain or abroad

If the marriage was celebrated in a country where same-sex marriage was already valid, Spain recognises it retroactively from the date Act 13/2005 entered into force, provided that the couple requests registration with the Spanish Civil Registry.

If the marriage was celebrated in Spain prior to 2005, it was not legally valid at the time. However, such couples were able to marry legally again after the reform.

Same-sex civil partnerships entered into abroad

Although Spain recognises same-sex marriage, it also acknowledges civil partnerships, which are regulated at the autonomous community level. These partnerships:

• May involve same-sex or opposite-sex couples;
• Grant limited civil and administrative rights, such as residence permits, employment rights, and access to social benefits;
• But partneships do not carry the same legal effects as marriage, e.g.:
• They do not automatically grant succession rights, and
• Do not give rise to a matrimonial property regime.

The financial outcomes arising from divorce proceedings can be grouped into four main categories:

• Liquidation of the matrimonial property regime: the division of jointly owned or community property. (Articles 1,397 to 1,410 of the Civil Code and Articles 806 to 811 of the Civil Procedure Act)
• Maintenance obligations (alimony): financial support for children and, in exceptional cases, for a spouse in need. (Articles 142 to 152 and Article 93 of the Civil Code)
• Compensatory allowance (pensión compensatoria): aimed at compensating an economic imbalance between the spouses after divorce. (Article 97 of the Civil Code)
• Use of the family home and household goods: intended to protect the interests of the more vulnerable spouse or the children. (Article 96 of the Civil Code)
• Economic compensation for work in the case of a separate property regime: aimed at protecting one spouse. (Article 1,438 of the Civil Code)

Certain Autonomous Communities in Spain have their own rules regarding the matrimonial property regime and its dissolution and liquidation.

Likewise, some Autonomous Communities have regional civil legislation that governs the above-mentioned financial measures arising from a divorce. These measures are addressed by the courts within the same divorce judgment.

The key guiding principles in the division of matrimonial assets under Spanish law are equity, economic autonomy, and the matrimonial property regime chosen or applicable to the spouses.

The manner in which property is divided depends on the economic regime under which the couple was married. Spain recognises three main regimes, as set out in Articles 1,315 to 1,444 of the Civil Code:

• Community of property: all assets acquired during the marriage are jointly owned and are divided equally upon dissolution. This is the default regime in most regions of Spain.
• Separation of property: each spouse retains sole ownership of their individual assets. There is no jointly owned property. This is traditionally the default regime in Catalonia, the Balearic Islands, and Valencia.
• Participation in profits: each spouse retains their own property, but upon dissolution of the regime, each may share in the other’s gains. This regime is rare and must be expressly agreed upon by the spouses.

From the applicable regime, a number of general principles govern the division of assets:

1. Principle of equality between spouses

Both spouses have equal legal capacity and rights in managing and disposing of jointly owned property.

In the division of assets, each spouse is entitled to half of the community property, regardless of gender, occupation, or direct economic contribution.

Domestic or caregiving work is valued equally to financial contributions.

2. Principle of community in jointly acquired assets

Spouses may freely choose their matrimonial property regime through a marital agreement (capitulaciones matrimoniales).

They may also change or modify the regime during the marriage, provided this is done before a notary and meets the legal formalities.

The spouses may also agree in advance on how property will be divided upon dissolution.

3. Principle of equity and proportionality

In judicial practice, the courts apply equitable criteria, particularly where one spouse made greater personal sacrifices.

For example, where one spouse has devoted themselves exclusively to domestic duties or childcare, the court may recognise a financial compensation for economic imbalance.

4. Compensation for domestic work

A spouse has the right to financial compensation where one has contributed primarily through domestic labour.

5. Protection of the family interest

Measures are aimed at protecting the family home and assets essential to the welfare of children and the more vulnerable spouse.

6. Principle of good faith and patrimonial loyalty

Spouses are prohibited from concealing, misappropriating, or unlawfully disposing of marital assets.

7. Post-divorce economic independence

Divorce results in a complete termination of the joint property regime and a return to separate estates.

8. Legal certainty through registration

Proper registration of property and marital agreements is encouraged to ensure protection of third parties and enhance legal certainty.

In summary:

The division of assets in Spain is not punitive or compensatory in nature, but rather seeks to:

• Restore economic balance between the spouses;
• Respect the contributions of each party;
• Uphold the principle of equality, supported by equity and the protection of the family interest.

The value of domestic work and good faith in asset management are essential considerations in current Spanish judicial practice.

Yes, under the Spanish legal system, the court may, and often does, issue provisional financial measures during the course of divorce, legal separation, or annulment proceedings. These are designed to safeguard the financial well-being of the spouses and their children until a final judgment is delivered.

These measures are known as “provisional measures” or “preliminary measures” and are primarily governed by Articles 102 to 104 of the Civil Code, and Articles 771 to 774 of the Civil Procedure Act.

The Spanish court acts in accordance with the principles of equity, necessity, and proportionality. In deciding on provisional measures, the judge takes into account both economic and personal circumstances of the spouses, as well as the best interests of the children:

• Income and financial resources: wages, rental income, assets, pensions, benefits, and subsidies received by each spouse.
• Earning capacity and age: whether either spouse faces objective difficulties in securing employment due to age, health, or disability.
• Family needs: expenses related to housing, food, education, and healthcare for the children.
• Standard of living during the marriage: the court seeks to avoid disproportionate imbalance or sudden impoverishment of either spouse.
• Duration of the marriage and family contributions: the extent to which either spouse devoted time to household responsibilities or child-rearing.
• Housing situation: ownership or tenancy of the family home, necessity of continued use for the family unit, and related costs.
• Economic conduct: whether either spouse has attempted to conceal assets or has voluntarily ceased to contribute financially.

The Civil Code lays down general criteria but does not prescribe a mathematical formula; Spanish judges have broad discretion to determine both the amount and duration of financial awards.

The current approach of the Spanish Supreme Court is to limit the duration of such awards, except in exceptional cases involving structural economic dependency.

The recognition and enforcement of foreign financial orders (for example, those concerning compensatory maintenance, child or spousal support, or the division of assets following divorce) in Spain depend on whether the judgment originates from an EU Member State or a non-EU country.

In Spain, such foreign financial orders, including judgments or decisions relating to maintenance, assets, or financial compensation, may be:

• Automatically recognised and enforceable if issued by certain EU Member States, or
• Subject to an exequatur procedure if originating from non-EU countries.

The purpose is to ensure that the foreign decision produces the same legal and enforceable effects as a Spanish judgment, without reopening or re-examining the merits of the case.

• From an EU Member State (maintenance/pensions): No prior exequatur procedure is required. Recognisable judgments include those concerning child or spousal maintenance. Competent authority: Court of First Instance.
• From an EU Member State (property/economic regime): No prior exequatur procedure is required. Recognisable judgments include those concerning the liquidation of matrimonial property or compensatory settlements. Competent authority: Court of First Instance.
• From a non-EU country with an applicable international convention: Recognition depends on the terms of the convention; exequatur may be required. Recognisable judgments include those concerning maintenance, property, or compensation. Competent authority: Court of First Instance.
• From a non-EU country without an international convention: A prior exequatur procedure is mandatory. Recognisable judgments may concern any civil or financial order. Competent authority: Court of First Instance.

Once recognised, the foreign order is enforced in the same manner as a Spanish judgment, through attachments, garnishments, and coercive measures.

Yes, financial claims (whether economic or maintenance-related) may be brought in Spain following a foreign divorce, but only in specific circumstances, depending on:

• Whether the foreign divorce has been recognised in Spain;
• Whether Spanish courts have international jurisdiction; and
• Whether the financial issues were not adjudicated in the country where the divorce took place.

Possible Scenarios:

• Foreign divorce without financial measures: A financial claim may be filed in Spain. The procedure is a new claim.
• Foreign divorce including financial measures: The decision may only be enforced, not re-litigated. The procedure is the recognition and enforcement.
• Foreign divorce with no assets or residence in Spain: No financial claim can be filed in Spain due to lack of international jurisdiction.
• Foreign divorce with assets located in Spain: A financial claim may be brought before Spanish courts. The procedure is with a claim for asset division or liquidation.
• Foreign judgment partially recognised: Only unresolved matters may be claimed in Spain. Recognition applies partially.

Yes. The community of property regime is fully recognised and regulated under the Spanish Civil Code (Articles 1344 to 1410).

Spain recognises the following matrimonial property regimes:

• Community of property: Property acquired during the marriage is jointly owned and divided equally upon dissolution. This is the default regime in most of Spain.
• Separation of property: Each spouse retains ownership of property acquired individually; there is no joint estate. Common in Catalonia, the Balearic Islands and in Valencia (historically).
• Participation in profits: Each spouse retains their own assets, but upon dissolution participates in the other’s gains. This is less common and requires an express agreement between the spouses.

Foreign matrimonial property regimes, including community or joint property systems, are fully recognised in Spain, provided they are valid under their law of origin and do not contravene Spanish public policy

Prenuptial and postnuptial agreements — known in Spain as matrimonial agreements (capitulaciones matrimoniales) are fully valid and recognised. However, their binding effect depends on their form, content, and compatibility with Spanish public policy. The treatment also varies depending on whether the agreement was executed in Spain or abroad.

Agreements Executed in Spain

• Form required: Must be executed in a notarial public deed.
• Must be recorded in the Civil Register to be enforceable against third parties.
• Applicable law: Spanish law, unless otherwise agreed under Article 9.2 of the Civil Code.
• Automatic recognition.
• Limits to validity: Must respect public policy, equality between spouses, and family interests.
• Binding force: Fully binding, except where there are defects of consent or subsequent material changes in circumstances.

Agreements Executed Abroad

• Form required: Must comply with the formal requirements of either the law of the place of execution or the national law of the parties.
• May require registration or formal validation in Spain.
• Applicable law: Determined by conflict-of-law rules or by Regulation (EU) 2016/1103.
• Automatic recognition: Automatic only if the agreement originates from an EU Member State under Regulation (EU) 2016/1103; in other cases, recognition is incidental and may require judicial or notarial confirmation in Spain.
• Limits to validity: Must comply with Spanish public policy and ensure protection of the economically weaker spouse.
• Binding force: Fully binding if valid under its governing law and not contrary to Spanish public policy.

Child maintenance is primarily regulated by Articles 142 to 150 and Article 93 of the Spanish Civil Code, among others. In addition, several regional or foral regimes also contain specific provisions governing child maintenance.

The maintenance obligation covers all that is necessary for the child’s sustenance and well-being, including:

• Housing expenses;
• Food, clothing, hygiene, pharmacy, and medical care;
• Educational expenses, such as school fees, canteen costs, school materials, textbooks, and uniforms;
• Other ordinary expenses, including mobile phone and transportation costs.

In addition, extraordinary expenses may arise (such as uninsured medical treatments, summer camps, language courses abroad, extracurricular activities, university or postgraduate studies), the child maintenance is determined in the following way:

• Judicial proceedings for separation, divorce, or parental responsibility.
• It may be established either by agreement between the parents (subject to judicial approval), or by court decision if no agreement exists.
• When setting the amount, the court considers:
• The needs and expenses of the child;
• The income and assets of each parent;
• The custody arrangement, whether joint or sole.

The amount is updated annually according to the Spanish Consumer Price Index, unless otherwise agreed.

The duration of the maintenance obligation:

As a general rule, child maintenance lasts until the child reaches the age of majority (18 years).

It may continue beyond that age where the child:

• Continues to reside in the family home, and
• Lacks financial independence for reasons not attributable to them (e.g. ongoing studies).

Thus, the duty to provide maintenance persists while the child remains in education and acts with reasonable diligence.

The maintenance obligation ceases when:

• The child obtains sufficient financial means of their own;
• The child voluntarily abandons education or the family home; or
• The maintenance debtor or beneficiary dies.

Yes. Spanish courts have the authority to issue orders concerning the financial welfare of children beyond standard maintenance payments, particularly in relation to the family home and the use or management of assets or capital.

Use of the Family Home: Article 96 of the Civil Code

Under Article 96 of the Civil Code, the court may grant use of the family home and household effects to one parent in the best interests of the minor children. The general rule is where there are minor children, use of the home is granted to the custodial parent and the children until they reach majority or financial independence.

In cases of shared custody, the court may adopt a more flexible approach, such as:

• Allocating use for a limited period,
• Ordering the sale of the property, or
• Establishing rotational use between parents.

In all cases, the aim is to preserve the children’s stability and living environment, even when ownership belongs wholly or partly to the other parent.

Contribution to Extraordinary Expenses: Article 93 of the Civil Code and Case Law

In addition to regular maintenance, the court may order both parents to contribute to extraordinary expenses, which include:

• Medical treatments not covered by public healthcare or private insurance;
• Extracurricular activities;
• Language courses abroad, university or postgraduate studies (e.g. master’s degrees).

Spanish case law has largely defined extraordinary expenses as those that are unforeseeable and non-recurring.

The court determines the proportion each parent must contribute, taking into account their respective incomes and financial circumstances.

Allocations or Compensation Relating to Assets or Capital

Although the Civil Code does not expressly provide for capital transfers or trust-like funds for children, as in some common law systems, courts may adopt equivalent protective measures, such as:

• Constitution of a right of use or usufruct: the court may grant the custodial parent a temporary right of use or usufruct over the other parent’s property (typically the family home) for the benefit of the children.
• Administration of children’s property: where the minor possesses assets or capital (through inheritance, donation, compensation, etc.), the court may:
• Appoint an administrator, usually the custodial parent, or exceptionally a third party; and
• Supervise the management of such assets to ensure they are used in the child’s best interests (Articles 164–168 of the Civil Code).
• Protective or precautionary measures: when there is a risk of non-payment or asset concealment, the court may order security or legal measures to guarantee compliance, such as:
• Preventive attachment of the debtor’s assets;
• Requirement of a financial guarantee; or
• Wage or income garnishment.

In Spanish law, cohabitation is legally recognized, but it is not uniformly regulated at the national level. Instead, regulation falls within the competence of the Autonomous Communities, and thus the legal effects vary across regions. Recognition may arise through registration, notarial deed, or judicial determination.

General Recognition of Cohabitation in Spain

The cohabitation, also referred to as stable partnership, is recognized as a protected family unit, though not fully equivalent to marriage.

Therefore:

• There is no single national statute governing cohabiting couples.
• Each Autonomous Community (e.g., Catalonia, Balearic Islands, Madrid, Andalusia) has its own legal framework.
• Throughout Spain, the Civil Code applies subsidiarily, and the agreements between partners are also legally binding.

Forms of Recognition

Cohabitation may be recognized through three primary mechanisms:

• Public Registration: each Autonomous Community maintains a Register of Domestic Partnerships, and in some cases, municipalities also have their own registers. The Registration may confer access to certain rights, such as widower’s pensions, tax benefits, and employment-related rights. Also, requires proof of stable cohabitation, typically for one or two years, unless the couple has common children.
• Judicial or Notarial Recognition: recognition may also be established through:
• A notarial deed formally constituting a pareja estable, or
• A judicial decision, where the couple proves public, continuous, and stable cohabitation even without registration.
• De Facto Recognition (Unregistered Cohabitation): even in the absence of registration or formal documentation, courts may recognize the existence of a de facto union if evidence shows stable, public, and enduring cohabitation with intent to form a family unit. This recognition is generally limited in effect, primarily in areas such as child custody or liability for family expenses.

Legal Effects of Cohabitation

The legal consequences of cohabitation depend on the autonomous regulation but generally include the following principles:

• When there are common children, the same rules apply as in marriage, including full equality in parental rights and responsibilities.
• The court may grant use of the family home to the custodial parent, prioritizing the best interests of the children.
• No automatic economic regime exists. However, partners may enter into agreements or claim compensation based on contributions made during the relationship.
• Generally, cohabiting partners have no statutory inheritance rights, though some Autonomous Communities grant limited rights.
• For Social security and taxation, partial equivalence to marriage exists if the partnership is officially registered. For example, in eligibility for survivor’s pensions, tax deductions, among others.

Unmarried couples living together (known as cohabiting couples or “more uxorio”) do not automatically have reciprocal economic rights upon separation, except where established by agreement or expressly recognised by regional law.

General principle under common law (Civil Code)

Each partner retains ownership and administration of their assets, and no economic regime or mutual economic rights arise solely from cohabitation.

This means:

• There is no community property regime, no joint ownership, nor an automatic right to compensation upon separation.
• If they wish to regulate their property relations, they must do so by means of a cohabitation agreement (either a private contract or a notarised deed).
• In the absence of such an agreement, only exceptional claims are possible, based on general principles of law.

Guiding principles applicable throughout Spain

Although regional regulations vary, courts apply common criteria:

• Autonomy of the will: the parties’ agreements prevail (contracts or cohabitation pacts).
• Equity and proportionality: compensations seek to prevent significant economic imbalances.
• Economic causation: a claimant must prove an effective contribution to the joint property or that of the other party.
• Burden of proof: the claimant must demonstrate enrichment, contribution, or sacrifice.
• Family and children’s interests: may influence decisions on the use of the family home or transitional financial support.

Possible scenarios

• Unmarried couple separating without agreement: no automatic economic rights. Compensation claims may arise for unjust enrichment, de facto partnerships, or domestic work.
• Separation with agreement or registered couple: the agreed terms or regional law apply, including compensatory rights and housing rights under applicable regional legislation.
• Separation with common children: rights relating to maintenance and use of the family home apply in the best interests of the child, but do not affect the property regime between the partners.

The legal situation of separated parents regarding their children is essentially the same, whether they were married or not, because the guiding principle is the best interests of the child and the equality of all children, regardless of their parents’ marital status.

Therefore, measures concerning the children are determined as follows:

• Parental authority: whether the parents are married or not, parental authority is joint in both cases except in serious circumstances.
• Custody: custody may be sole or joint regardless of whether the parents are married or not.
• Maintenance: maintenance payments are mandatory if the parent obliged to pay has the resources, regardless of the parents’ marital status.
• Use of the family home: granted in the interests of minor children, whether the parents are married or not.
• Judicial procedure to establish child-related measures: if the parents are married, a divorce proceeding is processed; if there is no marriage, a guardianship, custody and maintenance proceeding is processed.
• Children’s rights: these are full and equal, regardless of whether the parents are married or not.

Jurisdictional requirements determine which Spanish court has competence to hear proceedings regarding custody and measures relating to children, both within Spain and in international cases.

In Spain, jurisdiction in matters of custody and measures concerning children corresponds to the court of the habitual residence of the child, and Spanish courts only have international competence when the child lives in Spain or there is a substantial and justified connection.

The applicable criteria of competence and jurisdiction are summarised below, distinguishing between domestic and international scopes, in accordance with current Spanish law (the Civil Procedure Act, the Civil Code and European and international regulations):

In Spanish domestic law:

• Competent court: court of first instance (family) of the child’s habitual residence.
• Legal basis: Articles 769 and 775 Civil Procedure Act; Article 9.2 Organic Act on the Judiciary.
• Prosecutor’s involvement: always when minors are involved.
• Modification of measures: same court that issued the original final measures.
• In cases of urgency and risk: competence of the court where the child is located (Article 158 of the Civil Code).

In international law:

• Competent court: court of the country of the child’s habitual residence.
• Legal basis: Regulation (EU) 2019/1111; Hague Convention 1996.
• Prosecutor’s involvement: always in Spain.
• Modification of measures: court of the State where the child habitually resides.
• In cases of urgency and risk: provisional competence (Article 20 Brussels II ter).

General legal situation following the breakdown of the relationship: in Spain, after separation or the ending of a relationship, whether marriage or civil partnership, both parents remain holders of parental authority, except in exceptional cases. The fundamental principle is the best interests of the child. Therefore, the end of the parents’ relationship does not affect the child’s rights to maintain contact with both parents nor the obligation of both to support and care for the child.

Types of orders the court may issue: when parents separate or cease cohabitation, the family court judge may establish, in a judicial order on measures (whether final or provisional), all matters relating to custody, parental authority, residence, visitation, communication and maintenance.

The most common types of orders are as follows:

• Custody: may be shared, awarded to one parent, or sole.
• Visitation, residence and communication arrangements for the child with the non-custodial parent.
• Use of the family home: is primarily attributed to the custodial parent and minor children.

In shared custody, the judge may:

• Allocate temporary use to one parent,
• Divide usage times,
• Order sale or replacement of the property, according to the best interests of the child.

Child maintenance payable by the non-custodial parent:

• The non-custodial parent (or the parent with greater financial capacity, in cases of shared custody) must contribute financially to the child’s upkeep (Articles 142 and 93 Civil Code).
• This includes costs for food, housing, education, and healthcare.
• The amount is updated annually according to the consumer price index.

Exceptional protective measures: in cases of domestic violence, abuse or serious conflict, the judge may (Article 158 of the Civil Code and Organic Act 8/2021):

• Suspend visits, communications, or custody.
• Order supervised or restricted visits.
• Adopt urgent precautionary measures.
• Require assisted therapy or mediation.

Governing principles underpinning judicial decisions:

• Best interests of the child: every decision must prioritise the physical, emotional and educational wellbeing of the child.
• Parental co-responsibility: both parents must actively participate in the upbringing, education and development of the child.
• Child’s right to maintain relationships with both parents: the child has the right to relate to both parents, even in the absence of cohabitation or marriage.
• Equality of children: no distinction is made between children born within or outside marriage.
• Child’s right to be heard: the child has the right to be heard in all proceedings affecting them.
• Stability and emotional environment: priority is given to maintaining the child’s educational and social environment.

Hearing of the child:

• Mandatory when the child is 12 years old or older.
• Children under 12 years old may also be heard if they are deemed sufficiently mature.
• The judge, prosecutor or psychosocial team assess this.

The hearing is conducted as follows:

• In court premises, in a suitable environment, without parents present.
• Carried out by the judge or, if deemed appropriate, by a psychologist or member of the judicial technical team.
• Always in the presence of the public prosecutor, who safeguards the child’s rights.
• A confidential record is made; recordings or transcripts are not provided to the parties, to protect the child’s privacy.
• The child’s views are not binding but carry significant weight in the judicial decision.

General regulatory framework:

In Spain, the relocation of minors is governed by various rules depending on whether the move is national or international:

Spanish domestic law:

• Article 154 of the Civil Code → duties arising from parental authority.
• Article 156 of the Civil Code → requirement of consent from both parents for significant decisions.
• Articles 92, 94, 103 and 158 of the Civil Code → measures concerning custody, visitation and child protection.
• Articles 748 and following of the Civil Procedure Act (Ley de Enjuiciamiento Civil, LEC) (family proceedings).
• Articles 2 Organic Act 1/1996 on the Legal Protection of Minors (best interests of the child).

International law:

• Hague Convention Of 25 October 1980 on the Civil Aspects of International Child Abduction.
• Regulation (EU) 2019/1111 (Brussels II bis), applicable since 2022, on jurisdiction and recognition of decisions in parental responsibility matters.
• Hague Convention of 1996 on Parental Responsibility and Measures for the Protection of Children.

Fundamental guiding principles:

Any decision regarding the relocation of a minor, whether within or outside Spain, must be based on the following essential principles:

• Best interests of the child: consideration is given to the child’s emotional wellbeing, educational and social stability, family bonds and environment.
• Joint exercise of parental authority: both parents must consent to the child’s change of residence; neither parent may decide unilaterally.
• Child’s right to maintain contact with both parents: the child has the right to personal relationships with both parents.
• Proportionality and necessity: relocation is only authorised if it does not harm the child’s bonds nor infringe the rights of the other parent.
• Hearing of the child: the child must be heard if aged 12 or older, or if sufficiently mature.

The applicable procedure depends on the origin of the foreign judgment, that is, whether it comes from:

• A member state of the European Union, or
• A non-EU state.

Resolutions from member states of the European Union:

Applicable rule: Regulation (EU) 2019/1111 of the Council, ‘Brussels II ter’, in force since August 1st of 2022, replaces the previous Regulation (EC) 2201/2003 (‘Brussels II bis’).

Scope:

• Custody (parental responsibility).
• Rights of access/contact.
• Return of wrongfully removed children.
• Recognition and enforcement of judgments between member states.

Principles:

• Automatic recognition.
• Custody or contact orders issued in a member state are automatically recognised in Spain without the need for a special procedure.
• The substance of the case is not reviewed.
• A certified copy of the judgment and a European certificate (Article 36 of the regulation) issued by the court of origin suffice.

Direct enforcement:

• Judgments enforceable in the state of origin are directly enforceable in Spain once submitted to the competent court (court of first instance/family).
• A traditional exequatur is not required.
• Enforcement can only be refused for specific reasons (Article 39), such as conflict with Spanish public policy, incompatibility with a later judgment regarding the same child, lack of hearing of the child when required.

Return orders of minors:

• Orders for the return of a child issued under the Hague Convention of 1980 and certified under Brussels II ter are automatically enforceable in Spain.

Competent authority:

• In Spain, recognition and enforcement are requested before the court of first instance (family) of the child’s or respondent’s domicile.

Resolutions from states outside the EU:

Applicable:

Hague Convention of 19 october 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

Act 29/2015 of 30 july on international judicial cooperation in civil matters: exequatur procedure; judgments must be recognised through exequatur before enforcement in Spain.

Main requirements (Articles 41–58 of the Act 29/2015):

• The judgment must be final and enforceable in the state of origin.
• The foreign court must have had international jurisdiction according to criteria recognised by Spain.
• The defendant must have been duly served and had an opportunity to defend.
• It must not conflict with a Spanish judgment or Spanish international public policy.
• Once exequatur is granted, the foreign judgment produces the same effects and is enforceable as if issued by a Spanish court.

Regarding ‘‘mirror orders’’:

Spain does not formally regulate mirror orders in its legislation but accepts them in practice and case law in cases of authorised international relocation or cross-border custody. That is, Spain does not automatically issue a mirror order but may issue a substantially equivalent judgment to ensure effectiveness and judicial control within Spanish territory.

International child abduction:

If one parent moves or retains the child outside Spain without consent or judicial authorisation, this may constitute international child abduction, regulated by the Hague Convention of 1980.

In such cases:

• The affected parent may request the immediate return of the child before the Spanish central authority (Ministry of Justice).
• Spain processes these cases as a priority, and courts are expected to decide within an indicative maximum period of six weeks.

Hague Convention 1980:

Spain is a signatory state and party to the Hague Convention of 1980.

Spain signed the convention on 25 October 1980, ratified it on 28 may 1987, and it came into force on 1 September 1987.

The Spanish central authority responsible for applying the convention is the Subdirectorate General for International Legal Cooperation (Ministry of Justice, Directorate General for International Legal Cooperation and Human Rights).

Main functions:

• Receive and process requests for return or access/contact.
• Locate the child.
• Cooperate with judicial and police authorities.
• Facilitate enforcement of return orders.

Spain is an active party to the Hague Convention of 1980, fully applies it, and its courts are committed to the swift return of wrongfully removed children, except in exceptional cases. Furthermore, Spain combines this regime with Regulation Brussels II ter within the EU and effective international judicial cooperation.

In Spain, surrogacy is prohibited under current legislation, and is null and void based on article 10 of Act 14/2006, of 26 May, about assisted human reproduction techniques:

• Surrogacy agreements are not permitted within Spanish territory, neither free of charge nor remunerated.
• The mother who gives birth is always the legal mother, regardless of the gametes used.
• The nullity applies both to contracts entered into in Spain and those intended to be enforced in Spain, even if signed abroad.

Surrogacy abroad and recognition in Spain:

Children born through surrogacy outside Spain:

• The supreme court and the Directorate General for Legal Security and Public Faith (DGSJFP) have issued rulings allowing recognition of parentage, only if the best interests of the child are respected.
• The surrogacy contract itself is not recognised, but the child born is protected to guarantee identity, nationality, and family rights.

Legal routes for recognition of the child:

• Registration in the Spanish civil registry:
• Only permitted if there is a final court ruling from the country of origin determining parentage.
• A contract or foreign medical certificate alone is not sufficient.
• Adoption of the child:
• If no foreign ruling exists, the parent or couple in Spain must adopt the child in accordance with Spanish law (Articles 176 et seq. of the Civil Code).
• This is the most common way to regularise parentage.

General legal framework of adoption in Spain:

• Articles 175 to 180 of the Civil Code
• Act 54/2007, on International Adoption
• Organic Act 1/1996, on Legal Protection of Minors
• Regional laws on child protection (competence of the Autonomous Communities)

In Spain, adoption is a child protection institution, not a right of adults. The guiding principle is always the best interests of the child (Article 176 bis of the Civil Code and Article 2 of the Organic Act 1/1996).

Who can adopt in Spain:

• Single people: they can adopt. Both men and women can adopt individually, without the need to be married or cohabit with another person. Age and suitability requirements must be met. In practice, their environment and family/social support network are assessed.
• Married couples: they can adopt jointly. This applies to both heterosexual and same-sex marriages (following Act 13/2005, which amended the Civil Code to recognise equal marriage). Both spouses must give their consent and be declared suitable.
• Cohabiting couples (civil partnerships or couples): they can adopt jointly if the cohabitation is stable and proven. The Civil Code does not require marriage but a relationship analogous to marriage, recognised by the regional child protection services. The Autonomous Communities assess the stability and duration of the cohabitation (usually more than two years).
• Same-sex couples: hey can adopt jointly. Since Act 13/2005, same-sex couples enjoy the same rights regarding parentage and adoption as heterosexual couples.
• Adoption of the spouse’s or partner’s child: one member of the couple may adopt the biological or adopted child of the other, even if they are not married.

International adoption:

Regulated by Act 54/2007, of 28 December, and by the 1993 Hague Convention on International Adoption (ratified by Spain).

• Spain only processes adoptions with cooperating countries that guarantee the protection of the child and prohibit commercialisation.
• Applicants must first obtain a declaration of suitability in their Autonomous Community.
• Once completed, foreign adoption is automatically recognised in Spain if it complies with the guarantees of the Hague Convention.

In Spain, the non-court dispute resolution in family matters are:

• Family mediation: the intervention of an impartial mediator who helps parents reach agreements regarding custody, contact, and maintenance.
• Assisted negotiation/private agreements: the parties, with the help of their lawyers or a mediator, agree on measures without going to court.
• Judicial conciliation: the judge or the court clerk encourages the parties to reach an agreement before issuing a decision.

Agreements reached through an non-court process that include measures concerning minor children arising from divorce or separation must be approved by a court, with the intervention of the Public Prosecutor, in order to have legal and enforceable effect. Such agreements are always subject to judicial control based on the best interests of the child.

At present, Act 1/2025 of 2 January, on measures to improve the efficiency of the Public Justice Service in relation to Alternative Dispute Resolution (ADR) mechanisms, entered into force on 3 April 2025, and establishes the obligation of prior negotiation in certain family proceedings before resorting to the judicial route.

The main developments introduced by Act 1/2025 of 2 January are as follows:

• Admissibility requirement: the Law provides that, for certain declaratory proceedings under Book II of Act 1/2000 of 7 January, on Civil Procedure (LEC), and special proceedings under Book IV of the LEC, it will be necessary to prove that a prior attempt at negotiation or ADR (mediation, binding offer, etc.) has taken place before filing the claim. This means that the claim cannot proceed unless this requirement is met, except in the cases expressly exempted by the Law.
• Scope of application: the Law applies to civil proceedings, including family proceedings (though not all procedural matters).
• Exceptions: The Law specifies that prior negotiation will not be required when the matter concerns the ‘civil judicial protection of fundamental rights’ or the ‘adoption of measures provided for under Article 158 of the Civil Code’, or in urgent proceedings, or where the interests of the child prevent any delay or negotiation. In other words, certain matters are excluded from this requirement.
• Permitted forms: prior negotiation may take place through different means such as mediation, conciliation, assisted direct negotiation, or binding offers. There is no single mandatory method; the aim is that the parties attempt to reach an understanding before judicial proceedings continue.
• Required documentation: to file a claim, or to continue proceedings, it is necessary to submit a document proving that the negotiation activity has been carried out, or to justify why it was not possible. For example, because the respondent’s address is unknown.

In addition to Organic Act 1/2025 on measures to improve the efficiency of the Public Justice Service, which entered into force on 3 April 2025 and introduced procedural reforms (ADR mechanisms, admissibility requirements, etc.) also affecting family law, there are several reforms currently under way in Spain:

• Draft Families Bill: the Government has presented a draft Families Bill aimed at recognising new family structures (single-parent families, blended families, unmarried partnerships, same-sex families) and improving work–family balance. It is currently pending before the Congress of Deputies. The objective is to redefine the concept of ‘family’, to provide better support for child-rearing, and to enhance labour rights relating to parental care.
• Bill on Work–Life Balance and Shared Parental Responsibility: this bill seeks to strengthen parental leave entitlements, promote shared responsibility for caregiving, and introduce specific measures for families such as single-parent households. It is in parliamentary process, with debates and amendments ongoing.

Moreover, further reforms may be introduced in other areas of family law to align the legislation with evolving social realities and with both national and European case law. The aims include improving legal certainty for minors and their parents, reducing litigation, and addressing disparities between Spain’s autonomous regions, which currently have differing legal regimes. The most likely areas for reform are as follows:

• International or interterritorial relocation of the child: there is an increasing number of cases where the custodial parent relocates with the child. Reforms aim to balance the best interests of the child, the rights of the custodial parent, and the right of the non-custodial parent to maintain contact.
• Structure and regime of custody (and shared parental responsibility): possible amendments may establish clearer criteria for when shared custody should be imposed, define minimum standards, and regulate in greater detail the residence and time-sharing arrangements between children and their parents.
• Recognition and legal effects of diverse families and new forms of parentage: family law is expected to refine the regulation of unmarried partnerships, the parentage of children born through assisted reproductive techniques, and the rights of non-biological parents. This will likely require amendments regarding parental rights and duties, the Civil Register, and adoption procedures.
• Property and financial arrangements after the breakdown of unmarried partnerships or cohabiting relationships: reforms may seek to increase legal certainty and uniformity, as current regulations vary among Spain’s autonomous communities.
• Protection of minors following separation or divorce: future legislation may provide more detailed rules concerning the family home, continuity of schooling, and the child’s social environment, ensuring greater stability and safeguarding the best interests of the child.

In Spain, family law primarily protects the privacy of the parties involved, particularly that of minors. The general rule is that proceedings are not public, and the exception requires prior judicial authorisation. Only the parties, their lawyers, the Public Prosecutor, and any experts or witnesses called to appear are permitted to attend.

Under this rule, the press is not allowed to attend family law hearings, unless expressly authorised by the judge in exceptional circumstances.

Judgments are public only in a formal sense:

• Article 120.1 of the Spanish Constitution provides that judgments are public, although this principle is interpreted in a restricted manner in family matters.
• Although judgments may formally be accessed through the Judicial Documentation Centre (CENDOJ) or legal databases, the following applies:
• Judgments are published in anonymised form (without names, surnames, or identifying data).
• Only decisions of jurisprudential or doctrinal relevance are disseminated.
• Rulings issued by courts of first instance are not made public.

In Spain, succession law is governed by Articles 657–1087 of the Civil Code or by the regional civil laws (Catalonia, Navarre, Aragon, Galicia, the Balearic Islands, and the Basque Country).

Following a separation, the succession rights between partners change, as the legal system assumes that the breakdown of the relationship terminates the personal and economic bonds that justified inheritance between them.

If the parties were married: the surviving spouse has automatic succession rights if their partner dies intestate (without leaving a will).

In cases of separation or divorce:

• Judicial separation or divorce: the former spouse automatically loses any succession rights (Article 834 of the Civil Code).
• De facto separation without a court order: if there is clear intent and a stable separation, the surviving spouse may be excluded on just grounds for disinheritance (Article 855 of the Civil Code), although this may be subject to dispute.
• Will made prior to divorce: the will remains valid unless revoked. If the testator named their spouse as heir and subsequently divorced, the will continues to be effective unless there is express or implied revocation (Article 767 of the Civil Code).

If the parties were an unmarried couple or cohabitants: unmarried partners do not have automatic succession rights under the State Civil Code, unless there is a will in their favour.

Exceptions under regional civil laws:

In several Autonomous Communities with their own civil law, certain rights of usufruct or maintenance are granted to the surviving partner:

• Catalonia: Articles 442-3 et seq. of the Catalan Civil Code – right to occupy the family home for one year and to receive maintenance from the estate if the cohabitation was stable.
• Aragon: Articles 311 et seq. of the Aragonese Code of Regional Civil Law – partial succession rights for unmarried partners comparable to those of a spouse.
• Navarre: Article 71 et seq. of the Navarre Compilation – similar rights to those of a spouse if the partnership is registered.
• Basque Country: Articles 4 and 51 of Act 5/2015 – full equalisation with the spouse in intestate succession if the partnership is registered.
• Galicia and the Balearic Islands: certain temporary rights of use of the family home or rights to maintenance.
• Rest of Spain (common regime): the surviving partner has no succession rights unless provided for in a will.

Effects on the family home and shared assets:

In marriage:

• If there is a joint marital property regime (sociedad de gananciales), this must be liquidated upon divorce, and the family home will be allocated or compensated according to the agreement or court order.
• If one spouse dies before liquidation, the surviving spouse retains a usufruct right over their hereditary share, but not if they were already divorced or separated.

In unmarried partnerships:

• There is no automatic joint property regime unless agreed by contract.
• If the deceased partner was the sole owner of the home, the surviving partner has no succession or usufruct rights over it, unless provided for by will or under applicable regional law.

Succession planning after separation: any person who separates or divorces should review their will, insurance policies, and property designations to prevent unintended legal or financial consequences in the event of death.