Two British citizens resided in Spain until one year ago. After deciding to divorce, the husband returned to the United Kingdom. If there are no assets to be liquidated and it has been agreed that the husband will pay child maintenance, is it necessary to prove the applicable law?
Answer:
1. Applicable Law Concerning Minor Children
With respect to minor children, the judge is not bound by the parents’ agreement and may adopt any measures deemed to be in the best interests of the child.
Therefore, it is necessary to determine the national law applicable to the minors, which, under Article 9 of the Spanish Civil Code, is the law of their nationality.
2. Applicable Law to the Divorce
- If the divorce is by mutual agreement, and one spouse continues to reside in Spain, the applicable law will be Spanish law.
- If the divorce is contentious, the applicable law will be the law of the spouses’ common nationality — English law — pursuant to Article 107 of the Spanish Civil Code.
In contentious proceedings, it will therefore be necessary to present and prove the content and validity of English law before the Spanish court.
3. Matrimonial Property Regime
Since both spouses are British citizens, the law applicable to their matrimonial property regime is the law of their country of origin (UK law).
However:
- The procedural steps for liquidation of assets follow Spanish procedural law (Articles 3 et seq. of the Spanish Civil Procedure Act — LEC).
If there are no assets to liquidate:
- In a mutual‑agreement divorce, it is sufficient to state this in the divorce settlement agreement (convenio regulador).
- In a contentious divorce, liquidation proceedings are not required as long as there is no active or passive marital estate to dissolve.
