SPAIN Trends and Developments Contributed by: Amparo Arbáizar, Arbáizar Abogados
If 30 days have passed since the request for negotia ‑ tion and the first meeting has not taken place, it will be understood that the process has been terminated, or if this negotiation process has begun within 30 days of a proposed agreement. Since 3 April 2025, Article 264, 4th of the Spanish Procedural Law (LEC), has required that the claim must include a document proving that prior negotia ‑ tion activity has been attempted before resorting to legal action, or a declaration by the claimant stating the impossibility of carrying out prior negotiation activ ‑ ity before resorting to legal action due to not knowing the address of the defendant or the means by which it can be requested. This new requirement for both parties to engage in negotiation, and its accreditation as a prerequisite for filing a lawsuit, means that family law proceedings can be delayed by more than 30 days if no agreement is reached. This delay can be detrimental to the child’s best interests, particularly in cases of parental dis ‑ putes, where a child may be deprived of prolonged contact with one parent or of receiving child support payments, etc. At the international level, and particularly within the European Union, it can harm citizens residing in Spain, who lose the so-called “Brussels II race”, because they have to wait more than 30 days in the Spanish jurisdiction to be able to file the claim. For these and other reasons, on 17 December 2025, a bill was introduced in the Spanish Parliament to amend Law 1/2025, of January 2, so that the prior requirement of ADR (MASC) is not required in family proceedings affecting minors. The Bill of 17 December 2025, amending Law 1/2025 of January 2, argues the need for amendment with the following claims:
“Systematically forcing parties into a prior mediation or negotiation process before guaranteeing the most basic rights of children in family law proceedings, such as the right to child support or the right to com ‑ municate with their parents or relatives, or preventing parents from quickly resolving their disagreements regarding parental authority in court on urgent and fundamental matters, clearly delays the solution. Any delay in the response increases the exposure to the problem. Furthermore, in high-conflict scenarios, it exacerbates gender-based and domestic violence. Delays in the judicial response fuel the conflict to the detriment of the children.” Due to the mandatory nature of this procedural requirement, when an international law factor inter ‑ venes in family proceedings, a disadvantage may arise for the party who, fulfilling this requirement, is prevented from accessing the judicial body, since, in systems of other countries where this procedural requirement does not exist, as may be the case in matters of parental responsibility or alimony, this may allow the other party to the proceedings to file a claim in another Member State that also has jurisdiction, thus harming the litigant in Spain.” In conclusion, since 3 April 2025, it has been man ‑ datory to attempt prior negotiation before filing a civil or commercial lawsuit in Spain. This will delay the process by at least 30 days if an agreement is not reached. The requirement for prior negotiation to access the courts also applies to family law cases. Family law specialists believe that cases involving minors should be exempt from the mandatory nego ‑ tiation requirement, as it could be detrimental to pro ‑ tecting the child’s best interests. Therefore, an amend ‑ ment to Law 1/2025 has been requested to exclude proceedings dealing with family matters involving minors from the mandatory negotiation requirement. Until the proposed amendment is approved, it is cur ‑ rently mandatory in family law proceedings to resort to negotiation before being able to file a lawsuit in the courts in Spain.
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