SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
ter. 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 recognised in the Spanish Civil Code: • joint ownership of acquisition of assets; • separation of assets; and • participation in acquisitions. The matrimonial property regime will finish the ope legis on the date of the divorce decree. After the divorce decree, the parties can issue the specific liquidation of the matrimonial property regime and proceed to distribute the assets and liabilities between them. They can also make an out-of-court agreement and liquidate the matri - monial property regime in a notary public deed. Spain is comprised of 17 autonomous communi - ties ( Comunidades autónomas ), some of which have their own rules of law regarding family and succession. The common point is that, in all of them, you can choose your matrimonial prop - erty regime in a notary public deed. However, in the absence of an agreement, one of the fol - lowing matrimonial property regimes will apply by default: • Civil Code – joint ownership of assets ( Régi- men de gananciales ); • Catalonia, Aragón and the Balearic Islands – separate ownership of assets; • Galicia – joint ownership of assets; • Basque Country (differences between the counties) – joint ownership of assets/universal community of assets; or
• Navarra – matrimonial company of conquests ( Sociedad conyugal de conquistas ). The matrimonial property regime can be imple - mented with a prenuptial or postnuptial agree - ment. Spain is not a party to the Hague Convention of 1985, and trust is not a legal concept or regu - Foreign trusts can be recognised by the Spanish courts subject to proof of the foreign trust law or providing the judge with a similar civil law legal concept that would meet the purpose of the trust on a case-by-case basis: eg, donations, agen - cy, company, mortgage, mandate, fiducie and foundation. On divorce, the court will check the nature of the assets held in a trust, the owner of the assets held in the trust, who was the owner of the assets before the transfer to the trust, etc, to calculate the matrimonial assets. 2.4 Spousal Maintenance After a divorce, it is generally expected that each spouse will support themselves. The main aim of spousal maintenance is to help the ex-spouse to maintain the same “standard of living as dur - ing the marriage”. The main criteria for spousal maintenance are: • if the divorce produces an adverse economic imbalance for one of the spouses; and • if there has been a loss of professional oppor - tunities because of the marriage. Age, health, duration of the marriage and the spouse’s career prospects and ability to earn a living are also taken into account. lated in Spain. Foreign Trusts
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