As an English and Spanish law firm we are often asked where it is “best to divorce”. Obviously, there is no standard answer to this as each case will depend on its merits and the particular circumstances. However, as we have lawyers with specialist knowledge in each jurisdiction we can advise on whether there are grounds to divorce in Spain or England and if so which courts should hear the matter. This also applies when coming to an agreement on children and financial matters.
For example, if there are children habitually resident in Spain having lived here for some time then the Spanish courts have exclusive jurisdiction and will apply Spanish law to the arrangements for custody, visits and financial support.
We always seek to reach an agreement on any division of assets and it is very important to ensure that any order over property is correctly drafted to ensure that the asset can be transferred. A Consent Order drafted in England over property in Spain could be difficult to enforce if it does not take account of Spanish procedure.
We are also being asked about family and child orders post-Brexit. You may have heard that there is likely to be legislation brought in for the UK which incorporates many of the elements of EU regulations and directives. This could apply to the EU regulation on recognition and enforcement of Family orders. However, some of my Spanish colleagues are concerned that Spain may consider that UK nationals should be treated in the same way as those from say, South Africa, with the enforcement of a visits or custody order taking longer and becoming more expensive. These orders could still be valid and enforceable but the current EU procedure is undoubtedly speedier and allows for direct intervention by the authorities where a parent refuses to abide by a visits order.
Pension sharing orders are another area where falling outside EU regulations could result in difficulties particularly if the pension is needed for both parties. Sandra Wrightson – Partner and Family lawyer with De Cotta Law. For a confidential consultation on any of the above issues call us on 952 527014 or email us on [email protected]