SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
The compensation usually consists of temporary maintenance payments for a couple of years, but a single payment can also be considered. Life - long spousal maintenance orders are rare and only apply in cases where the marriage is very long and the spouse is of an age with no pros - pects to earn a living after having invested their life in the family’s welfare. A party can apply for interim maintenance pending the final outcome. This amount, for the spouse, until there is a divorce order, is consid - ered an obligation for family support during the marriage. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements, although not included in the Spanish Civil Code (CC), will be recognised by the Spanish courts on the basis of the principle of freedom of party autono - my (Article 1.255 CC) and the freedom of agree - ments between spouses (Articles 1323 and 1325 CC). These marital contracts must meet the cri - teria for a valid contract, such as free consent, object and motive (Article 1261 CC). Moreover, the principle of goodwill and compliance with the ordre public have to be observed. The most recent judgment of the Spanish Supreme Court ( Tribunal Supremo ) on marital contracts is Sen- tencia número 428/2022, dated 30 May 2022, proceedings Casación número 6110/2021. Spousal maintenance obligations or financial terms will be binding on divorce. Terms regard - ing 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 contracts under Spanish law and are therefore
binding on the contracting parties if they are not against the child’s best interests and the Span - ish 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 Span - ish notary 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 chil - dren, 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 notary public. 2.6 Cohabitation In the absence of children, parties can claim compensation and an order to sell their joint properties. Claims must be lodged in the civil courts; they are not under the jurisdiction of fam - ily 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 partner - ship where they were not registered by virtue of the length of cohabitation or the existence of children, but they do not acquire any rights oth - er than those granted to civil partners by each autonomous community.
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