SPAIN: DIVORCE LAW
SPANISH CIVIL CODE (CC)
Book I: Persons; Title IV: Marriage; Chapter VII: Separation
Article 81
Separation shall be judicially decreed, regardless of the form in which
the marriage was contracted:
(1) At the petition of both spouses, or of one of them with the others
consent, at the expiration of one year after the marriage was
contracted. The petition for separation must be accompanied by a
proposal for a regulatory agreement to govern the separation in
accordance with Articles 90 and 103 of this Code.
(2) At the petition of one of the spouses, when the other has incurred a
legal ground for separation.
Article 82
The following are grounds for separation:
(1) The unjustified abandonment of the family home, marital infidelity,
abusive or offensive conduct and any other serious or reiterated
infringement of conjugal obligations.
Marital infidelity cannot be alleged as a ground for separation when
there exists a prior separation in fact of the spouses, by mutual
consent freely given, or imposed by the spouse alleging it.
(2) Any serious or reiterated infringe ment of the obligations regarding
the common children or regarding those of any of the spouses who reside
in the family home.
(3) Sentence to imprisonment for longer than six years.
(4) Alcoholism, drug addiction, or mental abnormalities, provided that
the interests of the other spouse, or of the family, require the spouses
to discontinue living together.
(5) The effective cessation of marital life in common for a period of
six months by free consent. Such consent shall be understood to be
freely given where a spouse requests it from the other spouse in
authentic form, giving him or her express notice of the consequences of
doing so, and the other spouse fails to manifest his or her will against
it by any legally permissible means, or petitions a separation or the
provisional measures to which Article 103 refers, within six months of
the required summons.
(6) The effective cessation of marital life in common for a period of
three years.
(7) Any of the grounds for divorce in the terms provided by numbers 3, 4
and 5 of Article 86.
Article 83
A decree of separation suspends the spouses' life in common, and
terminates the possibility of binding the assets of the other spouse in
the exercise of domestic prerogative (potestad doméstica).
Article 84
Reconciliation puts an end to the separation proceedings and leaves what
may have been decided therein without further effect. The parties must,
however, notify the court of the reconciliation before which the
proceedings are or have been held.
The above notwithstanding, the measures taken in relation to the
children shall be maintained or modified by judicial resolution whenever
there exists just cause therefor.
Chapter VIII: Dissolution of Marriage
Article 85
Marriage is dissolved by the death or declaration of death of one of the
spouses, and by divorce, regardless of the manner and time in which it
was contracted.
Article 86
Grounds for divorce are:
(1) The effective cessation of marital life for, at least, one
uninterrupted year from the time of the filing of the petition for
separation, filed either by both spouses or at least by one of them with
the consent of the other one when at least one year since the
celebration of marriage has elapsed.
(2) The effective cessation of marital life for, at least, one
uninterrupted year from the time of the filing of the petition for
personal separation, at the request of the petitioner or of one who
filed a reconventional claim pursuant to Article 82, once the judgment
of separation becomes final, or where, the expressed term having
expired, there should be no judgment at trial level.
(3) The effective cessation of marital life for, at least, two
uninterrupted years:
(a) From the time the de facto separation is freely consented by both
spouses, or the time the judicial decree becomes final, or from the time
of the declaration of the legal absence of any of the spouses at the
request of either of them.
(b) When the petitioner of divorce proves that when the de facto
separation began the respondent had incurred a ground for legal
separation.
(4) The effective cessation of marital life for at least five years at
the petition of either of the spouses.
(5) A final judgment finding the other spouse guilty of attempting
against the life of the petitioning spouse or of his or her ascendants
or descendants.
When the divorce is petitioned by both spouses, or by one of them with
the other's consent, a proposal for a regulating agreement for the
effects thereof, in accordance with Articles 90 and 103 of this Code,
must be attached to the petition or to the first pleading filed in the
proceedings.
Article 87
The effective cessation of marital life to which Articles 82 and 86 of
this Code make reference is compatible with the continuation, or the
temporary resumption of life in the same domicile, when this results,
with regard to one or both of the spouses, from necessity, an intent to
reconcile, or is in the interest of the children and is duly shown to be
so in any legally admissible manner in the corresponding separation or
divorce proceedings.
The interruption of life in common shall not imply the effective
cessation of marital life if it is grounded on labor or professional
reasons, or on whatever reasons of similar nature.
Article 88
The action for divorce is terminated by the death of any of the spouses
and by their reconciliation. Reconciliation must be express when it
takes place after the filing of the demand.
Reconciliation after divorce does not produce legal effects, although
the divorced parties may contract a new marriage between each other.
Article 89
Dissolution of marriage by divorce can only take place by means of a
decree of divorce so declaring and shall produce effects from the time
this decree becomes final. It shall not prejudice third parties in good
faith until it is recorded in the Civil Registry.
Chapter IX: Effects Common to Nullity, Separation, and Divorce
Article 90
The regulating agreement to which Articles 81 and 86 of this Code make
reference must deal with, at least, the following subjects:
(A) The determination of the person in whose custody the children under
parental authority of both spouses are to remain; the exercise of
parental authority; and the regime of visitations, communications, and
childrens periods of stay with the parent who does not live with them.
(B) The use of the family dwelling and furnishings.
(C) Contributions to the expenses of marriage and support obligations,
as well as the basis for updating them and guarantees, when appropriate.
(D) The liquidation of the matrimonial property regime, when
appropriate.
(E) Maintenance which, pursuant to Article 97, must eventually be
discharged by one of the spouses.
Matrimonial agreements, entered into for the purpose of regulating the
consequences of nullity, separation, or divorce, shall be approved by
the court, unless they should be detrimental to the children or
seriously damaging to one of the spouses. The rejection must be made by
reasoned opinion, and, in such a case, the spouses must submit a new
proposal to the consideration of the court for approval, where
appropriate. From the moment it receives court approval, the agreement
may be enforced by compulsory executory process (vía de apremio).
The measures adopted by the court in the absence of agreement, as well
as those agreed upon by the spouses, may be modified judicially or by a
new agreement when there is a substantial change in the circumstances.
The court may establish the real or personal guarantees that the
performance of the agreement may require.
[....]
Article 97
The spouse to whom the separation or divorce produces an economic
imbalance in relation to the position of the other, which involves a
worsening of the situation he or she had during the marriage, has a
right to maintenance which shall be fixed in the judicial decree, taking
into account, among other, the following circumstances:
(1) The agreements that the spouses may have reached.
(2) Their age and state of health.
(3) Professional qualifications and the probabilities of gaining
employment.
(4) Past and future dedication to the family.
(5) Collaboration, by his or her own labor, with the commercial,
industrial, or professional activities of the other spouse.
(6) The duration of the marriage and their marital life.
(7) The eventual loss of a right to a pension.
(8) The wealth and economic means and necessities of both spouses.
The judicial decree shall establish the bases for updating the award of
maintenance, and the guarantees for its effectiveness.
Article 98
The spouse in good faith whose marriage has been declared null shall
have a right to an indemnification award, if there has been marital
life, taking into account the circumstances provided by Article 97.
Article 99
The substitution of an annuity, the usufruct of certain property, or the
delivery of capital in assets other than in money, instead of the
judicially fixed award pursuant to Article 97, may be agreed upon at any
time.
Article 100
After maintenance and the bases for updating it are fixed in the
judgment on separation or divorce, the award may only be modified when
there are substantial alterations in the economic capability of either
spouse.
Article 101
The right to receive maintenance terminates on the cessation of the
cause that gave raise to it, by the subsequent marriage of the spouse
entitled to it or by his or her marital cohabitation with another
person.
The right to receive maintenance does not end on the death of the person
who is obliged to make this payment. Nevertheless, the debtors heirs
may request the reduction or suppression of the award from the court if
the hereditary assets were insufficient to discharge the debt or if
their right to the legitimate portion would be affected.
CATALAN FAMILY CODE 1998 (CF)
Title II: Matrimonial property regi mes; Chapter I: The separation
matrimonial property regime and purchases with covenant of survival
[...]
Article 41. Economic compensation on the grounds of work
(1) In cases of judicial separation, divorce or marriage annulment, the
spouse who has worked for the household or for the other spouse without
receiving any payment in exchange or who has received insufficient
payment, shall be entitled to receive economic compensation from the
other spouse, in the event that this fact has produced a situation of
inequality between the two patrimonies, which implies an unfair
enrichment.
(2) The compensation shall be paid in money, unless otherwise agreed by
the parties or if the judicial authority, on grounds of a justified
cause, authorizes that the payment be made with assets belonging to the
obliged spouse. The payment shall be made within a maximum period of
three years, together with the accrued interests calculated at the legal
rate, from the acknowledgement. In this case, the constitution of
guarantees in favor of the creditor spouse may be judicially decreed.
3. This right is compatible with any other economic rights to which the
favored spouse may be entitled, but shall be taken into consideration
for the assessment of these other rights.
[...]
Title III: The effects of the annulment of marriage, divorce and
judicial separation
Article 76. Aspects that are the object of regulation
(1) In cases of nullity of marriage, divorce or judicial separation, if
there are children under the parental authority, the following must be
dealt with:
(a) The parent with whom the children shall have to live together and
also, if this applies, the rights of access, the periods of stay and
communication with the father or mother with whom such children do not
live.
(b) The way in which the custody of the children has to be exercised, in
the terms established in Article 139.
(c) The sum that has to be paid for childrens support, in accordance
with Article 143, by the father or mother, and the periodicity and means
of payment.
(d) The rules for the updating of the support payments and, eventually,
of the guarantees to ensure them.
(2) If there are children of age or emancipated who live with one of the
parents and have no earnings of their own, it shall be necessary to
establish the support that corresponds to them under the terms
established in Article 259.
(3) The remaining aspects that, according to the circumstances of the
case, will need to be dealt with are the following:
(a) The attribution of the use of the family dwelling, with the
appropriate household equipment and, eventually, the use of the other
residences.
(b) Any maintenance allowance or support payment that, if any, shall be
made by one of the spouses in favor of the other spouse.
(c) The manner, if any, in which the spouses continue to contribute to
family expenses.
(d) The rules for updating support and maintenance payments and, if
necessary, the guarantees to ensure their payment.
(e) The liquidation, if necessary, of the matrimonial property regime
and the division of common assets and properties, in accordance with
what is established in Article 43.
Article 77. Regulating agreement
Whenever marriage nullity, divorce or legal separation is petitioned by
both spouses acting in common agreement, or by one of the spouses with
the other spouse's consent, a proposal for a regulating agreement shall
be attached to the claim or initial writ.
In such a regulating agreement, the aspects indicated in Article 76
shall be dealt with.
Article 78. Judicial approval
(1) The regulating agreement mentioned in Article 77 shall necessarily
be judicially approved, except in those aspects that may be harmful to
the children. In such cases, the judicial authority shall indicate the
points that need to be modified and shall establish the period for
carrying out these modifications.
(2) Should the spouses fail to execute the requested modifications, or
if these cannot be approved on the same grounds as those mentioned in
paragraph 1), the judge will decide as appropriate.
Article 79. Absence of regulating agreement.
(1) In cases of marriage annulment, divorce or judicial separation
requested by one of the spouses without the consent of the other spouse,
the judicial authority shall resolve on the aspects mentioned in Article
76 directly.
(2) If, further to considering the circumstances of the case, the
judicial authority deems that the aspects cited in Article 76 can still
be resolved by common agreement, such judicial authority may refer the
spouses to a mediator or to a mediation institution so that the spouses
may resolve their differences, and so that the mediator or mediation
institution then submits a proposal of regulating agreement to which, if
necessary, the provisions contained in Article 78 shall apply.
Article 80. Modification
(1) The measures established by the courts decision may be modified
when subsequent circumstances so require. Such a modification shall be
made by means of a judicial decree.
(2) The regulating agreement or the sentence may foresee the relevant
modifications in advance.
Article 81. Court order
The payments established by the sentence may be collected by means of a
compulsory court order.
[...]
Article 84. Maintenance
(1) In cases where one of the spouses financial situation has been
impaired as a result of the divorce or legal separation and, in the
cases of nullity of marriage, the bona fide spouse only, shall be
entitled to receive maintenance from the other spouse.
Maintenance shall not exceed the standard of living that the couple led
during the marriage, nor the standard of living the spouse obliged to
make the payment can afford to maintain.
(2) In order to assess the maintenance awards, the judicial authority
shall take the following into consideration:
(a) The resulting financial situation of the spouses as a consequence of
the nullity of marriage, the divorce or the legal separation, and the
economic prospects for both spouses.
(b) The duration of the marital life in common.
(c) The age and health of both spouses.
(d) In cases where it applies, the specific economic compensation
governed by Article 41.
(e) Any other significant circumstance.
(3) Maintenance shall be reduced if the situation of the person who is
entitled to receive such an award improves, or if the situation of the
person obliged to pay it worsens.
(4) Upon request of one of the parties, the decision may establish the
relevant measures in order to ensure the payment of the award and may
also establish objective and automatic criteria for updating.
Article 85. Payment of maintenance
(1) Maintenance shall be paid in money and in advance monthly payments.
(2) At any time, by agreement of the spouses or, lacking this, by
judicial decree, the spouse obliged to pay maintenance may substitute
this by delivery of assets in ownership or usufruct.
Article 86. Termination of maintenance
(1) The entitlement to receive maintenance shall terminate in the
following cases:
(a) When the financial situation of the creditor spouse improves in such
way that maintenance is no longer justified, or when the financial
situation of the spouse who is obliged to pay it worsens in such way
that the payment is no longer justified.
(b) When the spouse entitled to maintenance remarries or cohabits
matrimonially with another person.
(c) When the spouse entitled to maintenance dies or is declared dead.
(d) When the period for which the payment of maintenance was established
has elapsed.
(2) Maintenance shall not terminate with the death of the debtor,
although his or her heirs may claim a reduction or the exoneration
thereof, if the profitability of the inherited assets is not sufficient
to pay maintenance. |
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