Family Law in Spain: Marriage, Kinship, and Divorce
Family Law
Family law regulates marriage and other family relationships, such as those of unmarried partners and affiliated individuals. Kinship, a term referring to family relationships, can be of three types:
- Adoptive Kinship: Established through adoption.
- Consanguineous Kinship: Based on blood ties.
- Affinal Kinship: Arising from marriage, such as in-laws.
To assess relationships, we must create a diagram between relatives. A straight-line relationship exists when individuals are direct descendants of one another. This differs from collateral kinship, where one must trace back to a common ancestor to establish a relationship. Siblings, cousins, and nephews are examples of collateral kin. Each generation represents one degree of separation.
Kinship has legal implications. Relatives in a straight line have a food obligation, depending on the needs of the claimant and the economic potential of the provider. For example, this is relevant in the separation of a married couple with young children. Among siblings, the maintenance obligation is restricted to the minimum subsistence.
Marriage
Marriage can be contracted in several ways:
- Civil: Before a judge, registrar, mayor, or consul.
- Religious: Canonical, Islamic, Jewish, or Evangelical.
Since 1998, unmarried couples in Catalonia also have legal regulation when they live together for more than two years, have children together, or register their union with a notary.
In marriage, consent is essential. Marriage is not allowed between relatives in a straight line or through the third degree of collateral kinship. However, marriage in the third degree is dispensable by the courts (with judicial immunity). Cousins, being fourth-degree collateral relatives, can marry without dispensation, while an uncle and niece would require it.
Invalidation means that consent was not given freely. However, a null marriage retains its effect for the spouse who acted in good faith and for the children. This is called a putative marriage, meaning a marriage is void but valid for children and the spouse who acted in good faith.
Separation and Divorce
Since the 2005 reform, the distinction between separation and divorce has become less significant. Separation is the cessation of cohabitation while maintaining the marital bond, whereas divorce is the dissolution of marriage.
These processes can be initiated in two ways:
- By Mutual Agreement: A proposed regulatory agreement must be submitted with the application.
- Contentious: Without agreement. In these cases, there is the possibility to apply for preliminary measures regarding housing and children in emergencies, but the lawsuit must be filed within 30 days.
With a contentious lawsuit, contemporary measures, also known as provisional measures, are requested. These are applied during the trial and are replaced by definitive measures set out in the judgment. These measures are not definitive but can be modified if circumstances change. When children are involved, the prosecutor and the judge have the freedom to determine measures regarding the children, even against the wishes of the parents.
In family processes, before, during, and after, parties can resort to family mediation to reach an agreement on these measures.
Matrimonial Regimes
Firstly, agreements are made. In prenuptial agreements, a contract can be made before a notary before the marriage, but it expires after a year if the marriage has not taken place. If there are no prenuptial agreements, the supplemental legal regime applies.
In Catalonia and the Balearic Islands, the separation of property regime applies. After the marriage, there are only two separate estates. In the rest of Spain, the community of property regime is common, meaning that each spouse retains what they had before the marriage and what they acquire by gift or inheritance afterward. Everything else, including earnings, becomes marital property and is divided equally (50% each) when the marriage is dissolved.
A third regime is participation. This functions like separation of property, but upon dissolution, the spouse with fewer earnings is entitled to a share of the other spouse’s profits. A notary must be consulted to specify if the participation regime is desired. The profits of the spouse who has earned more are halved and distributed.