Recommendation on Pre nuptial contracts
The Law Commission for England and Wales has recommended that pre nuptial contracts – an agreement on financial division of assets during the marriage and in the event of divorce – should become enforceable provided certain key conditions are met. A pre nuptial contract would become binding if the couple provided full disclosure of their financial situation at the time the contract was entered into and if both parties had received legal advice.
The courts would only overturn the agreement if they were used unfairly; one of the parties tried to avoid their obligations to their children or either became or placed a burden on the state. For example a wealthier spouse cannot remain in the matrimonial home if that means the children of the couple have to leave the property without adequate housing to move to.
Pre nuptial contracts could still be reviewed by the court to ensure they were fair but it is wise to get advice on the effectiveness of these agreements both now and once the new proposed legislation comes into force.
Same sex marriages
In the United Kingdom same sex couples will be able to marry in England and Wales when the Same Sex couples act comes into force in March 2014. Scotland has also passed legislation to recognise same sex marriage. It is very likely that Northern Ireland will follow.
Those currently in a civil partnership will be able to covert this into marriage. However at the moment the legislation or regulations have not provided a mechanism for doing this. The legislation on this point is rather strange as a civil partnership could be dissolved and then marriage entered into but if the relationship has not broken down irretrievably the civil partnership cannot be dissolved. Hopefully this gap in the regulations will be closed shortly.
Spain has recognised same sex marriages for a number of years.
For British people wanting to marry a Certificate of no impediment is still required.
Pension sharing orders
Laws on the sharing of pensions came into force in England and Wales in the year 2000. A detailed study has now taken place and it is surprising that in only 14% of cases where pensions were disclosed led to pension sharing orders.
Obviously many of these cases were those where older couples divorced and the courts used these provisions to offset differences in capital and income. For example wives can receive a capital sum to allow a husband to maintain his pension income. The report also showed that where lawyers were instructed a wife or husband with no personal pension would be able to get a fairer settlement to include a pension sharing order or to offset the pension against other assets.
In the Spanish courts it is not possible to represent yourself in court in family matters such as divorce, maintenance claims for children and pension sharing applications. This has advantages in that most lawyers will advise on the implications of financial orders on divorce.
For more information about Family Law in Spain, please book a private consultation with De Cotta Law at their offices in Marbella – Coin – Nerja – Tenerife.
Calle Diputación 11
Tel.: +34 952 527 014
Fax: +34 952 523 428