Family Law News from De Cotta Law.
Parental
responsibility
Parents of children whether married or unmarried
always share parental responsibility under Spanish law. A recent change in European
legislation means that Spanish law will always be applied to issues of parental
responsibility, custody and visits. However in Spain if the parents and
children are English it will be English law that will be applied to maintenance
and financial provision for children.
This may appear confusing but as the two legal
systems generally treat child matters in the same way the outcome of cases in
Spain or the UK will be broadly similar. Firstly it is important to distinguish
parental responsibility from custody and payments.
Shared parental responsibility means that
parents should discuss and resolve important matters for the children such as
decisions on their schooling, welfare and any particular religious or cultural
matters that form part of the child’s daily life. While this can be difficult
when a relationship breaks down the parents do need to focus on what is best
for the child and importantly need to realise that taking these matters into
court can be more stressful and takes the decision making away from the
parents.
Custody
Custody and visits have a fixed pattern in Spain
in the absence of an agreement to share custody. Now the Spanish courts will
consider joint custody for parents if they can show that the children have
stable and regular times with each parent. It does not need to be exactly 50/50
split of time but sometimes children do genuinely share homes with each parent.
If there is no agreement the courts normally
award every other weekend, 4 weeks in the summer and alternate Christmas and
Easters to the non custodial parent. This will apply in Spain from the time the
breakdown takes place even when the child is very young so it is important to
appreciate this before applying to the court or trying to limit access. The
advantage of this approach is that it brings certainty for both the children
and the parent who does not have custody.
Maintenance
The obligation of both parents to provide for
the children is ongoing until the children finish full time education. The UK
approach is set out in the Child Support Act which fixes percentage rules in
relation to income. If neither parent can show a fixed income the Spanish
courts have a less precise approach but they do insist on each parent making a
proper contribution. If there is difficulty in showing the earnings of a parent
the court can call for tax and other records. Evidence should be provided for
the needs of the custodial parent such as rental or mortgage, utility payments
etc. Where the non custodial parent cannot provide evidence of income the court
will look at lifestyle and proof of expenditure to come to a fair decision for
the children.
For more information on Family Law
or any other legal matter, please contact De Cotta Law, with offices in
Calahonda, Coin, Nerja and Tenerife.
Sandra Wrightson Tel: 952 931 781