Family law in Palma de Mallorca

Since the 2005 reform (Law 15/2005), divorce requires neither prior separation nor any particular ground: it is enough for one or both spouses to decide on it. The only requirement is that three months have passed since the marriage took place (Articles 81 and 86 of the Civil Code). That period is not necessary where a risk to the life, physical or moral integrity, freedom or sexual integrity of the petitioning spouse or the children is shown.

There is no minimum period of cohabitation, nor is the other spouse's consent needed: if one of them does not wish to divorce, the other may still apply and the court will give judgment. The length of the marriage therefore does not affect the right to divorce, although it may influence other matters, such as spousal maintenance or the widow's or widower's pension.

If there is agreement, the divorce proceeds by mutual consent, with a regulatory agreement (convenio regulador). If not, a contested divorce proceeds, in which the court rules on the children, the home, maintenance and the division of assets. In both cases, the documents and the timetable should be carefully prepared before taking the first step.

Separation suspends the spouses' life together and ends some of the effects of marriage, but the marriage bond remains: they are still married and cannot remarry. Divorce, by contrast, dissolves the marriage, so that the spouses recover their capacity to marry again. In both cases, the same measures are set for the children (custody, contact, maintenance), the home and financial burdens, and the matrimonial property regime comes to an end.

The effects differ. On separation, some rights specific to marriage are retained, such as, with certain qualifications, the spouse's inheritance rights or the possibility of reconciliation, which may be notified to the court so that the separation ceases to have effect. Divorce, by contrast, extinguishes inheritance rights between former spouses and the possibility of reconciliation without a new marriage. As regards the widow's or widower's pension, separated and divorced persons are subject to similar rules, as both must be entitled to spousal maintenance.

Today the vast majority of couples opt directly for divorce, because it is not necessary to go through separation first. Separation is usually chosen for personal or religious reasons or to retain certain effects for a time, such as health cover or inheritance rights.

It is a divorce in which both spouses agree to divorce and on all the measures that will apply afterwards, which they set out in a regulatory agreement. There are two routes. If they have no unemancipated minor children or dependent children whose capacity has been judicially modified, they may divorce before the court clerk (Letrado de la Administración de Justicia) or, the more common option, by public deed before a notary. If there are minor children, a divorce by mutual consent must proceed before the court, with the involvement of the Public Prosecutor, who safeguards the interests of the minors, and the court approves the agreement.

The cost depends on the route and the complexity of the agreement. You must allow for the lawyer's fees, which are agreed in writing (in a divorce by mutual consent, both spouses may use a single lawyer and, in the court route, a single court representative), the notary's fees if done before a notary, which are regulated, and the costs of entry in the Civil Registry. In a court divorce, individuals pay no court fee.

It is by far the quickest, most discreet and most economical route, and the one that generates least tension. For it to work, the agreement must be well thought out: clearly regulating the children, the home, maintenance and the division of assets and debts avoids many future disputes.

No. In Spain, the assistance of a lawyer is compulsory in separation and divorce proceedings, in both the court and the notarial routes. In a divorce by mutual consent before a notary or court clerk, the spouses must be assisted by a practising lawyer (Articles 82 and 87 of the Civil Code), although they may use one for both of them. In the court route, a court representative (procurador) is also required, who may also be shared if there is agreement.

The reason is that these are procedures with very important effects on the children, the home and assets, and the legislature wishes to ensure that both parties receive advice. If there is a conflict of interest (for example, disagreement over custody or the division of assets), each spouse must have their own lawyer, because the same lawyer cannot defend opposing interests.

Even if an amicable agreement is reached, it is advisable to review it with a trusted lawyer before signing. A poorly drafted agreement can cause problems for years, and amending it later is usually more difficult, costly and contentious than properly anticipating the issues from the outset.

The regulatory agreement is the document in which the spouses agree the consequences of their separation or divorce. It is governed by Articles 81 to 90 of the Civil Code and must contain, at a minimum and where applicable: the care of the children (custody, parental authority and contact arrangements, including holidays and special periods); allocation of the use of the family home and household goods; contribution to the burdens of the marriage and maintenance, with the basis for updating; liquidation of the matrimonial property regime; and, where appropriate, spousal maintenance. Since January 2022, it must also provide for the destination of pets, their care and the associated expenses.

It is also advisable to anticipate practical matters that often give rise to disputes: the children's extraordinary expenses (health, education, extracurricular), important decisions (school, medical treatment, residence), travel and passports, the division of debts and loans, guarantees of compliance and how future disagreements are to be resolved.

The court, court clerk or notary reviews the agreement: if they consider any measure to be harmful or seriously prejudicial to the children or to one of the spouses, they may decline to approve it. Once approved, it is binding and enforceable, so it should be drafted carefully and with an eye to the future.

The guiding criterion is the best interests of the child (Article 92 of the Civil Code). Parents may agree in the regulatory agreement how custody is to be organised, and the court approves this unless it is contrary to the children's interests. If there is no agreement, the court decides on the evidence: each parent's relationship with the children, the time they have devoted to them to date, their availability in terms of hours and work, the roots and stability of each environment, how close the homes are, each parent's respect for the other and the technical reports.

Children of sufficient understanding must be heard, and always those over twelve, and a report may be requested from the court's psychosocial team. The Public Prosecutor and, where appropriate, other professionals are also involved. A distinction should be drawn between parental authority (patria potestad, the power to take important decisions concerning the child, normally shared by both parents), custody (guarda y custodia, with whom the child lives and who looks after their daily life) and the contact arrangements for the parent who does not live with them.

Custody may be sole, with one parent and broad contact arrangements for the other, or shared. There is no automatic criterion in favour of the mother or the father: the circumstances of each family decide. It is important to gather evidence from the outset and not to use the children in the dispute, because this usually harms the person who does so.

Shared custody is the arrangement in which both parents share in a balanced way the time spent living with the children and are responsible for their daily care. It is organised differently according to the age of the children and the circumstances: alternate weeks, fortnights, the 2-2-3 system (two days with one parent, two with the other and three alternating at weekends) or other timetables. It does not mean that time is divided exactly fifty-fifty, but that both have an active role.

It may be requested by mutual consent, by including it in the regulatory agreement, or on a contested basis, by requesting it in the claim or the defence. The Constitutional Court has declared that a favourable report from the Public Prosecutor is not binding, so that the court may order it even if the Prosecutor does not support it, and the case law of the Supreme Court generally considers it a normal and desirable arrangement where it is possible and benefits the child. In principle, it is not available if one of the parents is involved in criminal proceedings for violence against the other or against the children.

To request it with prospects of success, each parent's involvement in bringing up the children must be shown, along with how close the homes are and the possibilities of organising timetables, schooling and activities, and a clear timetable plan must be in place. In the Balearic Islands, the difficulty of access to housing has led the courts to consider arrangements such as the so-called nesting (casa nido), in which the children remain in the home and the parents take turns.

Child maintenance (pensión de alimentos) is the parents' financial contribution to the children's needs: sustenance, housing, clothing, medical care, education and training. The Civil Code (Articles 93 and 142 et seq.) states that it is set in proportion to the needs of the recipient and the means of the payer. There is no binding statutory table, although the courts often use indicative tables and their own experience, and they assess each parent's income and expenses, the age and needs of the children, the custody arrangement and the use of the home.

Maintenance is normally paid by the parent without custody to the parent with custody, and is updated annually using the agreed index (normally the CPI). In shared custody, each parent bears the children's expenses when the children are living with them and, if there is a difference in income, a compensatory payment between them or a contribution to a joint account is set. Extraordinary expenses (uncovered medical costs, special education, glasses, orthodontics) are usually shared equally or in proportion to income.

The maintenance obligation does not end at eighteen: it continues until the children are financially independent, for as long as they continue their training with diligence. In the proceedings, maintenance accrues from the date of the claim. Good financial documentation (payslips, tax return, the children's expenses) is essential.

Spousal maintenance (Article 97 of the Civil Code) is the payment that may be awarded to a spouse where separation or divorce causes them a financial imbalance relative to the position of the other and entails a deterioration compared with their situation during the marriage. Its purpose is not to equalise assets but to compensate for that imbalance, and it is not granted automatically.

The court assesses factors such as any agreements reached by the spouses, age and state of health, professional qualifications and the likelihood of finding employment, past and future dedication to the family, the length of the marriage and cohabitation, any loss of a pension right, the wealth and financial means of each spouse and any other relevant circumstance. It may be set for a limited period or indefinitely, or replaced by a lump sum, and it is commonly temporary where the recipient spouse can reasonably regain financial independence.

It ends when the reason for it ceases, on the recipient's remarriage or on cohabitation with another person as a couple (Article 101), and may be varied if circumstances change substantially. It also has an effect on the widow's or widower's pension, because a divorced person may receive that pension only if entitled to spousal maintenance.

It depends on whether there are children and who has custody of them. Article 96 of the Civil Code provides that the use of the family home and household goods belongs to the children and the parent with whom they remain. It is a right of use, not of ownership: the owner of the home remains the same, and any mortgage remains in force and must continue to be paid. If the children are adults, use is usually allocated for a limited time until they become independent.

If there are no children, the court may allocate use to the non-owning spouse for such time as it prudently determines, provided that their interest is the one most in need of protection. In shared custody there is no automatic preference: the court may allocate use to one parent for a period, order the property to be sold or divided, or establish arrangements such as nesting (casa nido). Where the home was not the family residence or belongs to a third party, a different regime applies.

The right of use may be entered in the Land Registry, and disposing of the home (selling or mortgaging it) requires the consent of both or court authorisation. In the Balearic Islands, because of the price of housing, this question is increasingly difficult to resolve and all the alternatives should be explored in good time: sale, letting, buying the other's share or alternating use.

First, you must know which matrimonial property regime governs the marriage, because in the Balearic Islands it is not always community of property. In Mallorca, Menorca, Ibiza and Formentera, in the absence of a marriage settlement, the default statutory regime is separation of property (Articles 3, 65 and 67 of the Compilation of Balearic Civil Law), whereas community of property is the default regime under the general law and may apply to those with common civil residency status (vecindad civil) or who have adopted it by marriage settlement. The applicable law depends on civil residency status, residence and other circumstances, especially if there are foreign elements.

Under community of property, liquidation consists of making an inventory of each spouse's separate assets and of the joint assets (those acquired during the marriage at the expense of the common estate), paying the debts of the community, and dividing the remainder equally, allocating the assets. This may be done by mutual consent, in the regulatory agreement or before a notary, or through the judicial procedure for liquidation of the matrimonial property regime (Article 806 of the Civil Procedure Act), which is slower.

Under separation of property, there is no common estate to liquidate: each spouse retains what is theirs and co-owned assets are divided according to the rules on co-ownership. Depending on the case, financial compensation for work in the home may arise. The tax effects of the allocations should be taken into account, as in many cases they are exempt or not subject to tax, with qualifications.

Yes, but not just any change will do. The Civil Code (Articles 90 and 91) allows measures set in a judgment or agreement to be varied where the circumstances taken into account when they were set change substantially. The case law requires the change to be significant, supervening, lasting and unforeseeable, and not voluntarily brought about by the person relying on it. Examples include loss of employment or serious illness, a significant change in income, one of the parents moving to another town, a new educational stage for the children or the financial independence of an adult child.

The measures that may be varied are custody, contact arrangements, child maintenance, spousal maintenance and the use of the home. This is done through a procedure for variation of final measures before the family court (Article 775 of the Civil Procedure Act) or, if there is agreement and the requirements are met, through a new agreement before a court clerk or notary.

Until there is a new decision, the existing measures must continue to be complied with: ceasing to pay maintenance on your own initiative, even if your income has fallen, may end in enforcement and even in the offence of non-payment of maintenance. In general, the effects of a reduction arise only from the date of the claim for variation.

There are several routes. The main one is enforcement of the judgment or agreement before the family court (Article 776 of the Civil Procedure Act), in which the unpaid sums, interest and costs are claimed. The court may seize the debtor's salary, bank accounts, assets and rights, and order the maintenance to be withheld directly from their salary. For maintenance debts, the limits on seizure of salary are more flexible than for other debts, and the court may set the amount that can be seized. Maintenance arrears are time-barred after five years.

In addition, repeated non-payment may constitute the offence of family abandonment (Article 227 of the Criminal Code): non-payment for two consecutive months or four non-consecutive months is treated as repeated, and may be punished by imprisonment or a fine. A criminal complaint may be filed without prejudice to the civil route, although the strategy should be assessed with a lawyer.

If the person liable to pay cannot or will not comply, and the parent with custody is in need, there is the Maintenance Payment Guarantee Fund (Fondo de Garantía del Pago de Alimentos), which advances a limited sum per child for a maximum period, subject to income requirements. It is important to keep evidence of non-payment and to act without delay, because arrears accumulate.

Where there is an international element, the first step is to determine which courts have jurisdiction and which law applies. Within the European Union, Regulation (EU) 2019/1111 (Brussels II ter) confers jurisdiction in divorce and parental responsibility, by criteria such as the habitual residence of the spouses, of one of them or of the children, or common nationality. The law applicable to divorce is determined under the Rome III Regulation: the spouses may choose it under certain conditions and, if not, the law of their last common habitual residence applies, among others. Maintenance is governed by Regulation 4/2009.

The outcome may differ greatly depending on the country in which the divorce proceeds, so it is sometimes advisable to act quickly to file in the most favourable forum, with professional advice. Attention must also be paid to service on the spouse abroad, translation of documents, protection of the children (in cases of international abduction, the 1980 Hague Convention applies) and subsequent recognition of the judgment in other countries, which is automatic in the EU but requires a procedure outside it.

If the foreign spouse does not cooperate, the divorce may still proceed: the claim is served through international channels and, if the spouse does not appear, the proceedings continue in default. In divorces involving children, assets in several countries or substantial wealth, it is especially important to study the strategy before taking the first step.

The widow's or widower's pension (pensión de viudedad) is the Social Security benefit paid to the surviving spouse, or to a registered partner meeting the requirements, on the death of the contributor. While the marriage subsists, the spouse is entitled to it if the general contribution and marriage requirements are met (Article 219 of the General Social Security Act). Divorce significantly changes this position.

After divorce or separation, the right is retained (Article 220) only if the former spouse is entitled to spousal maintenance that ends on the death, and has not remarried or entered into a registered partnership. If there is no spousal maintenance, there is generally no widow's or widower's pension, with one exception: women who can show that they were victims of gender-based violence at the time of the divorce or separation are entitled even if they were not receiving spousal maintenance. The amount may not exceed the spousal maintenance previously received and, if there is also a new spouse or partner of the deceased, it is divided in proportion to the time of cohabitation, with a minimum of 40% for the person living with the deceased at the time of death.

This has a practical consequence when negotiating the agreement: waiving spousal maintenance, or setting it so that it does not end on death, may result in the loss of any future right to the widow's or widower's pension. This should therefore be taken into account before signing. In addition, divorce extinguishes inheritance rights between former spouses.