SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
Spouses can issue court proceedings to liquidate the matrimonial property regime with the divorce petition or after the divorce decree has been rendered. There are two parts to the liquidation of the matrimonial property regime proceedings: • to make the inventory of the assets and liabilities of the matrimonial property; and • to distribute the matrimonial property between the spouses. If there are many appeals, each part can take about one to two years. If the parties can reach an agree ‑ ment, the liquidation of the matrimonial property regime will be much quicker. 2.3 Division of Assets Financial Orders The financial orders on divorce are spousal and child maintenance, using the matrimonial home in the child’s best interests and liquidating the matrimonial property regime. In the case of the separation of assets matrimonial regime, a compensation order to a spouse for their dedication to the family that has produced a corre ‑ sponding loss of professional opportunities, as well as a financial order to put an end to the joint prop ‑ erty ownership of the spouses, can both be made on divorce. Spanish law does not provide for the possibility that, once the marriage is dissolved, the courts may ex officio establish patrimonial measures between the parties. On the contrary, any such measure between the spouses (such as spousal maintenance, financial compensation for family work or the allocation of the use of the family home) must be expressly requested by a party in the originating petition or in a defence and counterclaim to such petition, for the court to order (or not) corresponding measures in the judg ‑ ment it issues. The liquidation of a matrimonial property regime is a different matter, which can be decided in a later court proceeding, separate from the divorce action itself.
The court will only order spousal maintenance obli ‑ gations if requested in the divorce petition. The aim of maintenance orders is to redistribute the family incomes in order to minimise the effects of the divorce, primarily upon the children’s costs and expenses, and, secondarily, upon the spouses. The spouse with the larger income must pay more child maintenance and, eventually, maintenance to the other spouse. Main ‑ tenance obligations between spouses are not com ‑ monplace. Capital orders are made regarding the rules of the liq ‑ uidation of the matrimonial property regimes of the Spanish Civil Code. The assets and liabilities of the marriage will be split between the spouses following these articles in quite an impartial manner. The exception is the matrimonial property regime of asset separation. If there is no matrimonial property on divorce, the court can issue an order to compensate one of the spouses for their dedication to the fam ‑ ily, resulting in a corresponding loss of professional opportunities. If the couple has children, child maintenance orders must be made by the court on divorce, regardless of whether there is an agreement or not. If there is an agreement, the judge and the Ministerio Fiscal must approve the settlement protecting the child’s best interests. The court can request disclosure obligations from the spouses, although there is no subsequent penalty if the spouses do not comply. The court can request information about the spouses’ income from the Spanish Tax Revenue Office ( Agencia Tributaria ). The court can identify the spouses’ properties at the Span ‑ ish Property Registry and obtain information from the Register of Companies and the Cars Register. The main Spanish Banks co-operate with the court and can provide information regarding the spouses’ bank accounts or investment funds in their companies. The court cannot make orders for disclosure against third parties. There are three matrimonial property regimes recog ‑ nised in the Spanish Civil Code:
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