SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
2.7 Enforcement of Financial Orders A party can file an enforcement application before the same court that rendered the divorce order. In the enforcement application, the petitioner can provide the court with information regarding the other party’s assets and request disclosure from the other party. The petitioner can also request the court’s help to investigate the other party’s assets at the Spanish Land Registry, Register of Companies, Cars Regis ‑ ter, Spanish Banks, Spanish Tax Revenue, Spanish Employment Office, Spanish National Social Security System, etc. The court will charge the enforced party’s assets, including their payslips, bank accounts, etc. International enforcement of a financial order is per ‑ mitted when this order has been recognised in Spain. The European Regulation 4/2009 of 18 December 2008 on maintenance obligations rules the enforce ‑ ment of maintenance obligations between European Union member estates. The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the “2007 Hague Convention”) is applicable to enforce maintenance orders from signatory countries in Spain. Capital orders regarding the liquidation of the matri ‑ monial property will be enforced according to Coun ‑ cil Regulation (EU) No 2016/1103 of 24 June 2016, which implements enhanced co-operation in the area of jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of the matrimo ‑ nial property regime between member estates of the European Union and Spain. Otherwise, exequatur proceedings before the Spanish court will be needed for the recognition and enforce ‑ ment of a financial order. 2.8 Media Access and Transparency in Financial Proceedings The media and press are not able to report on financial cases because family proceedings are private, and the public cannot access them.
Spousal maintenance obligations or financial terms will be binding on divorce. Terms regarding child arrangements and the use of the family home will be taken into account by the court, but they will be checked by the judge and the public prosecutor to protect the child’s best interests. Marital agreements are recognised as private con ‑ tracts under Spanish law and are therefore binding on the contracting parties if they are not against the child’s best interests and the Spanish ordre public . The marital agreement will be enforceable when included in a court order after the divorce proceedings. A marital agreement can be directly enforceable if it is granted in a deed executed before a Spanish nota ‑ ry public. Marital agreements can cover a spouse’s financial claims on divorce, such as maintenance. However, they cannot deal with child maintenance or other claims regarding children, which must be approved by the judge and the Ministerio Fiscal, who protects the child’s best interests. The election of the matrimonial property regime must be granted in a deed executed before a Spanish nota ‑ ry public. 2.6 Cohabitation: Division of Assets Between Unmarried Couples In the absence of children, parties can claim compen ‑ sation and an order to sell their joint properties. Claims must be lodged in the civil courts; they are not under the jurisdiction of family law. In order to make a financial claim, a party must prove that the couple had joint properties, joint bank accounts, etc. The grounds for making a financial claim are the intention and existence of shared estates between the cohabitees. Parties can prove that they are in a civil partnership where they were not registered by virtue of the length of cohabitation or the existence of children, but they do not acquire any rights other than those granted to civil partners by each autonomous community.
232 CHAMBERS.COM
Powered by FlippingBook