After 20 years working in Spain I have lost count of the number of English court divorce orders that seek to deal with Spanish property as if it were English property. English lawyers will be familiar with the wording and recitals:
The property shall be sold forthwith on the open market for sale and the following conditions apply:…such solicitors as may be agreed…such estate agents as may be agreed etc.
Moreover, Spanish property is often defined as “the apartment in Marbella” or the “land in Valencia”. Yet in the same order a Land registry title number will be given to identify the English property. Quite apart from these issues there are also the costs and tax implications of the transfer or sale of property.
In Spain the only way in which property can be transferred is by way of notarial deed or by court order. Where a Judge makes any order to transfer property this can only be done by court auction. Therefore, the enforcement of any English order that does not specify the signing of a notarial deed can become very expensive and time consuming.
The question of taxation can also be a problem as there is a misconception in Spain that English people are married in “separation of assets” which would imply tax must be paid on the transfer even if it is a 50/50 split of assets overall.
These problems can be avoided by seeking advice from lawyers who specialise in conflict of laws and who can provide draft wording that is appropriate to the specific case and can be enforced in Spain if necessary. Clearly this advice is required before the order is finalised.
If you are the owner or joint owner of Spanish property and are seeking divorce in England or indeed in many other jurisdictions do get advice before the divorce or ask your lawyers to do so. Contact us on [email protected] or call +34 952 527014