Two British citizens have lived in Spain until a year ago. After considering divorce, the husband has returned to the United Kingdom. If there are no assets to be divided and it has been agreed that the husband will pay child support, is it necessary to demonstrate the applicable law?
Regarding:
For minor children, the judge is not bound by the agreement between the parents and may make decisions in the children’s best interest. Therefore, it is necessary to determine the national law applicable to the minors, which will be the law of their nationality (Article 9 of the Civil Code).
If the divorce is by mutual consent and one of the spouses still resides in Spain, Spanish law will apply. However, if the divorce is contested, British law will apply, as it is the common nationality of both spouses (Article 107 CC). In this case, it is essential to present British law and prove its validity.
Regarding the marital property regime, since both spouses are British, the applicable law will be that of their country of origin. However, the procedures for its liquidation will follow Spanish procedural rules (Articles 3 et seq. of the Civil Procedure Act).
If there are no assets to liquidate, it is sufficient to indicate this in the separation agreement in a consensual process. In a contested procedure, it is not necessary to initiate the liquidation of the marital property regime, provided there are no assets or liabilities to divide.
