SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
Children are able to give evidence in court accord ‑ ing to their age and maturity. They will be heard by the forensic psychologist and eventually by the judge alone. Children must be heard in court when they reach 12 years old. The court will take into account this evidence when convinced that it was free from any parent’s manipulation or influence. When children are older than 16 years old, the court usually follows their wishes because the court considers that at this age, it is very difficult to make them abide by an order that they oppose. 3.4 ADR in Child Law Matters Law No 15/2015 on Jurisdicción Voluntaria intro‑ duced the consent divorce before a notary in Spain. The notary will declare the dissolution of the marriage instead of the judge, but they will have the same com ‑ petence by virtue of the law. The notary must check the legal terms and equity of the divorce agreement. If the notary finds the divorce agreement unfair for one of the spouses or their grown-up children, they can decide not to ratify it, and the spouses must go to court (the notary cannot amend the agreement, nor can the spouses go to another notary). A notary from the spouses’ last habitual residence or the habitual residence of one of them will have juris ‑ diction. The spouses must attend personally to sign the deed in front of the notary and be legally assisted by at least one lawyer representing both parties, who will usually write the divorce agreement. The divorce agreement must address the use of the family home, spousal maintenance, and support for grown-up children. Any other agreement regarding the spouses, such as donations, can also be included. The liquidation of the matrimonial property regime can be done in the same agreement or afterwards. The notary deed ( escritura ) will be considered equivalent to a court order.
However, there is discussion in Spain about the legal nature of this new concept: whether it is a private divorce produced by the spouses’ consent and will ‑ ingness to dissolve their marriage (a private contract) or a consent divorce ratified by the notary as a public authority. Spouses cannot divorce on the basis of a private divorce if they have minor or disabled children. How ‑ ever, they can divorce with children older than 18, who must appear before the notary and sign the divorce deed if they are affected by the divorce agreement. The law does not refer to “common minor children”, so it is unclear whether a notarial divorce is possible if only one of the spouses has minor children. Since April 2025 ADR methods are mandated by the court and only in the case that ADR approach has not been successful, will it be possible to file the petition at court. Courts always offer parties the option to stay the divorce proceedings and attend mediation. There are family mediators, arbitrators and collabora ‑ tive lawyers. 3.5 Media Access and Transparency in Children Proceedings The media and press may report on relevant child cases, but the child must be anonymised in the case report. The media cannot access the proceedings’ information, which remains a protected private matter.
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