Family Law in Spain

In this article Eirene Trujillo, Spanish Abogado & Sandra Wrightson, an English Overseas Barrister with DeCotta McKenna & Santafé, guide us through the complexities of a parent's legal responsibilites as well as the right's of children here in Spain in the unfortunate event that their parents separate or divorce and the impact of both parties.
Many younger people are moving to Spain to start a new life and enjoy the family-friendly lifestyle offered here, and many are starting families or relocating their families here. Inevitably some of these relationships will change and result in the parents living separate lives. It is at this moment that it is so important for the children and the parents that legal assistance is sought as soon as possible so as to navigate a solution to often complex issues.
Spanish family law recognises equal rights of children whether the parents are married or not. There are a number of established legal procedures and precedents that relate to parental responsibility and rights when a relationship breaks down, encompassing the range of issues such as custody, visiting rights and maintenance.

In Spain parents must be represented by a lawyer and Procurator as well as the “Ministerio Fiscal”, the official solicitor that defends the rights of children in Spain.

Since there are a number of obligations and responsibilities that parents must fulfill towards their children in Spain, it is important that both parents are legally identified. A paternity test can be requested, but in court it is expected that there is sufficient evidence to prove who the parent is to justify the request. To help show that the test is warranted it is expected that evidence such as family photographs, letters, cards and witness statements are presented.

Parental Responsibility

The obligations of parents towards their children to provide everything necessary for care and well being are balanced with their rights. Both parents in Spain have equal rights with regards to making decisions that affect the well being and up bringing of the children, pertaining to issues such as education, religion, health etc. So if the parents are living apart and one parent has custody over the child, both parents still have equal rights over key decisions in the up bringing of the child and the court will defend the rights and responsibilities of both parents, irrespective of where the child is living.

In additional during legal proceedings or in complex cases, such as domestic violence, where one parent cannot see the other, both parents still retain the right to have access to and share in the life of the child. So even in cases where the parents cannot have contact, visiting with the child can still be arranged in a controlled, safe environment such as “Punto de Encuentro Familiar” or Family Contact Centre.

Custody & Access

In Spain, with regards to legal decisions over child custody & access, the court takes into account the views of children who are mature enough to express their views, this can vary but is generally children over 12 years. This progressive approach helps to balance the rights and wishes of the parents with those of the child. Typically though we find that parents already base their custody requests on the wishes of the children, but in contested cases, it should be noted the rights of a mature child will be considered.

In cases when parents have reached an amicable solution to custody, without the need to legal challenges, the court will still want to see that there is a default legal agreement in place in case that the amicable agreement breaks down. In Spain the typical default agreement is weekends with alternate parents, 4 weeks over the summer and alternate Christmas and Easter festivals.

Maintenance & Child Support

In all cases in Spain both parents are obliged to provide their children with support,. If English law is applied this includes children who have been treated as part of the family even if one of the parents is not the biological parent. Spanish law does not recognise the obligation to pay maintenance to non-biological children and this can be important in “second” families. Maintenance encompasses the core elements of a child’s well being such as education, healthcare, clothing and housing.

It is worth noting that in Spain, maintenance is an equal responsibility in the eyes of the court and is not automatically awarded in the mother’s favour. In addition it will be proportional to the parent’s financial capacity and the relevant needs of the child. Should these elements change, then it would potentially be possible to seek a modification of the maintenance.

Another important issue is that Family Law in these matters applies in Spain when the child is “habitually resident” in Spain. Therefore it applies to children here in Spain even if they were born in another country, such as the UK or Ireland. So, even if the parents are not domiciled in Spain, but the child has been resident here for a number of months and has started kindergarten or school and formed friendships and relations here, then Family law disputes must be settled in Spain. If parents return to the UK for example, typically now the UK courts will refer the case back to Spain where the child has been habitually resident.

Once child support and maintenance has been requested legally and later awarded, it cannot be back dated to before the date of the legal request. So it is best to seek legal advice as soon as possible in the case of a relationship breakdown.

In general terms, Family Law in Spain is fair, balanced and progressive. However there can be delays in getting a court date. Parents cannot choose the jurisdiction in which to go to court – they must go to their local court and of course some courts are busier than others.

When thinking about families and children, it is also a little sad to consider relationship breakdown, but this is a fact of life and if parents can work together in a fair compassionate way with good legal representation, then not only are the rights of children respected and protected but the parents too can be confident of a fair solution, respecting and balancing their obligations and rights.

If you would like to book a confidential consultation and discuss Family Law, please contact Sandra Wrightson, De Cotta, McKenna & Santafé – the firm has offices in Mijas-Costa, Coín, Nerja, Granada & Tenerife, with associates in the UK and across Europe.

Sandra Wrightson is an English Barrister Overseas, at De Cotta McKenna y Santafé, your local law firm offering support with all aspects of Spanish Law for English speaking clients.The head office is at:

Centro Comercial Valdepinos 1 y 3ª
Urb. Calypso
29649 Mijas Costa (Málaga)

Tel.: +34 952 931 781
Fax: +34 952 933 547

Email sandrawrightson@decottalaw.net

website: www.decottalaw.com