Divorce and Spanish property

Hi. A friend is splitting up from her husband and has asked me to ask for advise. 

She wants to know if it is best to divorce or not, from a financial point of view.

They own a property in Spain and I seem to remember that if a couuple aren't married and one dies, then the property automatically goes to the children - and they have three children.

I told her they will have to re-do their Spanish wills if they divorce. But are there any other implications in this scenario, like stuff to do with tax? She said they won't divorce if it's going to end up costing them a lot in taxes in Spain but will just hold on until the market improves and they can sell and split the money.

Any help on this would be welcomed.

Divorce is always the best option when a marriage breaks down.

If they were married in UK and now live in Spain then the Spanish courst will do the divorce under the appropriate UK law  - English or Scottish law

As in any divorce all assets (savings, cash, property, pensions, cars, etc in theory everything that is part of the household) and liablities (debts) are shared, support payments and access for children can be set by courts if not amicably agreed between parents. I beleive under Spanish law child support is 40% of income

As far as courts are concerned the priority is for the childrens future, well being and safety

Once all assets etc are agreed then a new will needs to be made as to who get what - a divorced or separated couple should not really have a joint will (conflicts etc)

A non married couple should have indiviudla wills defining what happens if one dies - any solicitor should be able to sort this in UK or Spain

All inheritance whether it is a spouse, child, friend etc will be subject to inheritance tax in Spain on any property (deductison for any outstanding mortage will be taken into acount)

Best advice you can give your friend is go and see a solicitor ASAP even if you call a free 30 minute one in UK not sure if any do this in spain maybe be worth checking

As in any divorce all assets (savings, cash, property, pensions, cars, etc in theory everything that is part of the household) and liabilities (debts) are shared, support payments and access for children can be set by courts if not amicably agreed between parents.

You have not told us sufficient to give you any reasonable advice,  but a solicitor in the country where the divorce will take place is a good idea.

But be aware:  Things are different in different countries.  Example:  In Spain when one marries the assets which one already has do not become joint assets, as they would in UK.

And, if one get divorced in Spain then of course Spanish law applies not that of the country (say UK) where you may have got married.

Elaine

And, if one get divorced in Spain then of course Spanish law applies not that of the country (say UK) where you may have got married.

Sorry but this is not correct the Spanish courts will apply the law of England and Wales (or Scotland if you married in Scotland) - ther is always exceptions i.e. are both parites living in the same country etc

See question 2 on link below

http://www.divorceinspain.com/ten_questions_on_divorce_in_spain.html

Perhaps you found a different court. My Friend married in Philippines divorced in Spain -  Spanish Law.   My sister married in Phil divorced in USA --- USA law, and even at that it was Florida law.    In Phil one cannot even get divorced it’s illegal !!!  Do you really think that any court anywhere would know the law in every other country and would apply it even if they did ? 

As for your quote:  Ask them  as I said, how  a court can a apply Philippines’ law on divorce when none exist !!   Lawyers often get it  wrong, ( ask 6 get 7 different, all wrong answers) except when they present the bill

Elaine

from what you are saying all are outside of EU maybe this is driven by EU and as you say no divorce law exists for Phil so any law will do! Always execptions

pretty easy to google and all references are clear for divorce in spain married in England

 from what you are saying all are outside of EU maybe this is driven by EU and as you say no divorce law exists for Phil so any law will do! Always exceptions

NO,  She was Filipino he was British they married in Manila, lived in Spain. I had PoA for her for the divorce as she was out of the country for some of the time,  so I was fully aware of everything that happened.  There was never any question of any other law,  it was Spanish. It so contrary to Phil law, that if she returns she can be arrested in Phil.  

Maybe the lawyer you quote is better informed than the Spanish court.

Elaine

for marriages in Phil you may well be right but is this applicable to the originator

I am not sure what the nationaility of the originator of this thread is or where they were married but if they were not married in Phil what is the point you are trying to make?

The fact remains if you were married in England under English law then a divorce can be granted by a Spanish court under English law and that is the default procedure in Spain

If you were married in Phil, where you say divorce is illegal (no resaon to doubt you as I do not know) then if you need a divorce and have go to any other country (or live in another country) that will allow divorce under their laws  OK no issues.

Final question are you also LindaLane (the originator of this thread) or do you know them or know more than what has been posted????

Thanks Tadd. Especially for the link you posted. 

They now live in England, so from the thread you posted it seems like they would have to be careful about the wording in the English divorce setlement where its mentioned about the Spanish property. If they decided one of them would have the Spanish property completely, then would it cost a lot to transfer it to one of their names if it is in joint names now (I think that is the case and will check)? Would there be capital gains tax, stamp duty etc. to pay?

Linda

The Spanish property would form a part of the overall matrimonial assets.

Hopefully they can reach an amicable agreement betwen themselves which satisifies the courts (a solicitor wil advise) as fair and reasonable for all.

For example if they have a property in UK then one take sone and the other takes one - it is all bout equal shares of the assets and liabilities and what is fair and reasonable

If they decide to transfer the property  to one of them I am sure there will be costs but not sure what (solicitor fees, notary and maybe bank charges if there is a mortgage).

If they decide to sell and share the profits (equity) or debt (negative equity) then again this is an option. If as you say they want to wait until the market picks up then they wopudl need clear direction and a sigend agreeement as aprt ofteh entire divorce - easiest way would be to simply sell or one takes ownership as part of any final divorce settlement. This maybe costly but divorces are often that and if the decision is to divorce then best get the cleanest and quickest break for all involved

Linda, don't take 'our expert' advice.  Consult a good solicitor.

The fact remains if you were married in England under English law then a divorce can be granted by a Spanish court under English law and that is the default procedure in Spain

The law which applies in Spain ?

If you divorce in Spain it is Spanish law which applies .  However, if the parties are British, and have not lost their British Domicile, then it MAY be possible to get a divorce through a  British court, in which case the local law (UK) will apply, i.e. because the court is in UK.

Quote from:  http://www.expatica.com/fr/family/Partners/Divorce-What-to-do-when-the-expat-dream-becomes-Paradise-Lost_17458.html

..............................          And for a couple living abroad, if things get to breaking point, contemplating how a divorce or relationship break-up works in terms of legalities and finances can simply seem like another impossible hurdle to overcome. The tax breaks abroad may have seemed appealing before, but who benefits in a split? How does the foreign family law system work? How do you find a reliable local lawyer who speaks English?

However, it need not be so daunting with the right legal advice and representation.

It could be that you can still use the English courts and an English lawyer. It could be that it would be of benefit for you to use local law. The important thing to remember is not to panic and, in the first instance, to seek advice from a family law specialist in England with experience of expat divorce issues.

The good news is that in many cases you will be able to choose to use the English courts to obtain a divorce. You will need specialist advice to confirm that this is possible however, if: 

elaine

very strange - you still have not even noted the couple in question are back in UK

Arew you unable to accept that sometimes you just might just be wrong

I apologise to all readers for this protracted thread

Some answers below in bold green:

Hi. A friend is splitting up from her husband and has asked me to ask for advise. 

She wants to know if it is best to divorce or not, from a financial point of view.

They own a property in Spain and I seem to remember that if a couuple aren't married and one dies, then the property automatically goes to the children - and they have three children.

They can now redo the will and choose their nationality Inheritance Law.

I told her they will have to re-do their Spanish wills if they divorce. But are there any other implications in this scenario, like stuff to do with tax?

If halves of properties are transfered due to divorce, no transfer tax ( 7-8 %), just stamp duty (1%) is due. She said they won't divorce if it's going to end up costing them a lot in taxes in Spain but will just hold on until the market improves and they can sell and split the money.

Any help on this would be welcomed.