Unfortunately divorce happens. Fortunately when it happens in civilized and amicable terms and the ex-spouses keep talking to each other, this make the process shorter and smoother and it is easier to finish the process of distribution of the common assets.
It happens sometimes that a British couple has a property in UK and bought a second one in Spain in equal parts (i.e. 50% each one) Then the Spanish property is in a legal situation called proindiviso). Later the couple gets divorced and agrees that the property in UK will be for one of the spouses and the property in Spain for the other one. This share out is formalized in the sentence of divorce passed by the British judge.
Now the problem is: how do we get application of the British sentence in Spain, break the proindiviso and change the ownership at the Land Registry in order that the spouse who got the Spanish property appears as the sole owner?
The first thing that a solicitor thinks is: Will it be necessary an exequatur?
An exequatur is a procedure to make valid in a country a sentence passed in a different country, and yes, the process can be long and expensive.
The good news is that as far as we have seen in our professional experience the Land Registers have common sense and ask only for something as “simple” as what we call Escritura de extinción de proindiviso (that we could translate as Deed to finish the proindiviso).
We say simple in inverted commas because the simplest formality can be quite complicated for a foreigner in Spain. If we are lucky and the Land Register who must change the ownership of the property has, as we said, common sense, the procedure could be like this:
1) The ex-couple must obtain a copy of the sentence with the stamp of the Court.
2) If the ex-couple doesn’t want or cannot come together to Spain the best thing is to give power of attorney to a Spanish solicitor. This power of attorney can be prepared in UK.
3) You need to find a notary in UK, sign the power of attorney attaching a copy of the passports and NIEs of the ex-spouses. You need to tell the UK notary that both the power of attorney and the sentence of divorce must be stamped with La Hague Apostille to make them valid in Spain. Once that you have the power of attorney and the sentence stamped with La Hague Apostille you send them to the Spanish solicitor.
4) Then the Spanish solicitor can go to a Spanish notary and obtain the Escritura de extinción de proindiviso.
5) Before inscribing the Escritura at the Land Registry, it is necessary to pay the Stamp Tax (1% of the minimum value established for the property by the corresponding Comunidad Autónoma). It is debatable if it is necessary to pay this 1% over the total value of the property or over the 50% of that value.
6) Once the Stamp Tax has been paid, the solicitor sends to the Land Register the Escritura and change the ownership of the Spanish property, so only one of the spouses will appear as the owner of the property.
It could be necessary also to have an official translation of the sentence of divorce (which increases the time and the price of the procedure). Fortunately the Land Registers of the cities and towns near the Spanish coast use to speak English. If we are lucky they won’t ask for the official translation or they will ask for a simple translation of the British sentence.
Salvador Manzano
salvadormv@serveco.es
Lawyer of www.serveco.es and www.tecnivalorestate.com