SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
change of custody in his favour based on the alleged existence of parental alienation. Although the Sentence did not reject parental alienation in itself, the Supreme Court confirmed that there was no evidence that the children in question had suffered from parental alienation, dismiss - ing the father’s claim. However, there is no clear jurisprudence against parental alienation. The courts will check parental alienation allegations on a case-by-case basis, supported by strong evidence and the forensic psychologist’s report. Children are able to give evidence in court according to their age and maturity. They will be heard by the forensic psychologist and eventu - ally by the judge alone. Children must be heard in court when they reach 12 years old. The court will take into account its evidence when con - vinced that it was free from any parent’s manip - ulation 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 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 competence by virtue of Law No 15/2015. 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 agree - ment, nor can the spouses go to another notary). A notary from the spouses’ last habitual resi - dence or the habitual residence of one of them will have jurisdiction. 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 agree - ment regarding the spouses, such as dona - tions, 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’ con - sent and willingness 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 pri - vate divorce if they have minor or disabled chil - dren. However, they can divorce 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 wheth - er a notarial divorce is possible if only one of the spouses has minor children. No ADR methods are mandated by the court. Courts always offer parties the option to stay in the divorce proceedings and attend mediation. However, there is no penalty if a party decides not to participate in mediation or any other ADR. There are family arbitrators and collaborative lawyers, but they are not commonplace.
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