DerechoCivil - National & International Civil Law

Private international law solves disputes of international jurisdiction, conflicts of applicable law, enforcement debates and determination of the legal status of foreigners.


All needs that require capacity in the field of private international law, like conflicts between international laws, procedural cooperation -especially between Spanish civil law and Mexican civil law- or recognition of judgments (Spanish in Mexico or Mexican judgments in Spain, exequatur), are taken care of by the firm.

In Habeas Legal we are trained to support you in the legal defense of your interests facing Spanish and/or Mexican courts.

We provide legal advice in:

  • Private international civil law
  • International marriages and divorces and their recognition in Spain
  • Constitution of stable couples (de facto couple) and their recognition
  • Execution of foreign judgments
  • International successions
  • Ecclesiastical nullity especially for the Filipino community

divorce 1 - National & International Civil Law

DIVORCE PROCESS

DIVORCE PROCEDURE – MUTUAL AGREEMENT – STEPS AND POSSIBILITIES

The divorce procedure by mutual agreement is initiated with the agreement of both spouses. It is important to highlight that such compliance is not limited to the act of divorce, but as well as to the regulatory agreement and the parenting plan, which will contain the measures to be adopted in relation to their children, with other relatives and about themselves.


The presence of children in this kind of procedure implies that its interests would receive primary attention. In case that the proposed measures attempt against the infants’ interest, a Court won’t approve it, even when they were agreed by both spouses. The greatest attention and guardianship must be given to children.


These are the reasons why this kind of procedure differs from the classic judicial litigation, where a lawyer usually gets involved.  In order to avoid tense situations that usually happen, it is always advisable that the spouses solve the marriage crisis by mutual agreement themselves, arranging the measures that would be adopted after the divorce.


Consequently, in a mutual agreement procedure, lawyers act as conciliators. Our deontological rules command us so, to act impartially, and to avoid any conflict of interest. Therefore, we will propose those measures that we consider most appropriate for each case, measures that must be ratified by both spouses, and it is their duty to act with a collaborative attitude, readiness and good faith.


Otherwise, it should be noted that in no case will be allowed any hint of bad faith or malicious attitude of either spouse whatsoever and will result in the extinction of the professional assignment that binds us.


It is important to emphasize that, if disputes between spouses become, we can not take sides in favor of any of them. In fact, if as a consequence of these disputes divorce procedure ends up leading to litigation, parties must hire a new lawyer each.

In those cases, this company could attend and be hired by some of the parties if there exists express consent of both. In the absence of such consent.


Below is shown a brief exposition of all the necessary steps to accomplish the divorce procedure by mutual consent


1.- FIRST VISIT


The first step that must be taken to solve the conflict is the first visit with the lawyer, in which, clients will expose their situation, so they can receive an assessment about the legal possibilities for their particular case.


In order to satisfactorily resolve their doubts, clients must answer honestly and sincerely to the questions posed by the lawyer,


By the end of the first visit, the lawyer will give the clients a road map in the form of a diagram of all the necessary procedures to carry out their claims.


2.- THE PROFESSIONAL ASSIGNMENT


After the first visit, and existing the intention to divorce, the lawyer will propose to the clients to contract their services throughout a judicial procedure to end up their marriage bond.


To achieve this, the lawyer will provide clients with a professional worksheet containing stipulated conditions to sign the contract. Clients should focus on the provided document, explaining all doubts and clarifications they deem pertinent, and finally decide on the convenience of contracting.


3.- THE PREPARATION OF THE FILE


Once the professional assignment sheet has been signed, the lawyer will open a file referring to the case that is entrusted to him, both in physical and digital format. Within that file, all the documents and all the necessary information to solve the command will be contained. The deposit of all these data will fulfill the regulatory requirements on the protection of personal data, also confidentiality in their treatment will be guaranteed.


Once the file is created, the lawyer will request the divorcees all the necessary documents to resolve the case favorably. In cases of divorce, it will be necessary to provide the following documentation:

  • Birth Certificate of each spouse and the children of the marriage. If you do not hold the Spanish nationality, it must be duly legalized or apostilled.
  • Marriage Certificate. It is worth reminding that if the marriage is not registered in any Spanish civil registry, the marital status of a married person in Spain is not legally held, therefore, divorce in this country will not be possible either.
  • Certificate of registration, to prove the conjugal address, or the domicile in which the two people who want to divorce and, where appropriate, their children reside at the present time.
  • Work life report, payroll, evidence of receipt of unemployment benefit or other Social Security pensions, income statements, and any other document that proves the economic status of both spouses. These documents will be essential for the adoption of the relevant measures in relation to the children or between both spouses during the divorce proceedings.
  • Documentation to prove the economic needs of the children, if any. For this matter, it would be necessary school and extra-curricular fees, invoices for school books, and any others that may be proposed.

4.- PREPARATION OF THE REGULATORY AGREEMENT AND THE PARENTING PLAN

Both the regulatory agreement and the parenting plan are essential documents to resolve situations of divorce, so it will be necessary to write them as accurately and completely as possible.  Basically, the parenting plan will contain measures to follow in relation to the children of the marriage, while the regulatory agreement will contain the measures to be adopted with respect to both spouses.


We will draft the proposals of the regulatory agreement and the parenting plan that we consider as reasonable as possible due to the concurrent situation, for which we will require all the information that we consider necessary. It is essential that the maximum cooperation between both spouses prevails since only in this way it will be possible to guarantee the achievement of the most equitable measures for the situation that underlies the divorce.


We will disclose these proposals to both spouses, whom will be able to accept them, add the observations they consider appropriate for possible improvement or modification of the mentioned proposals or even expressly reject any specific point.

The response granted by the spouses must be written and be duly signed, with mention of the date and place where it was signed.

Considering this reply, the lawyer will summon both spouses with the objective of reaching compliance on the content of the regulatory agreement or the parenting plan. For these purposes, the lawyer will propose new modifications to the proposals considered pertinent.

If there is agreement, the lawyer will redraft a proposal with the modifications required in their case by the spouses so that it is signed by both so that their compliance is confirmed.


If there is no agreement, the lawyer will draft a new proposal in the terms that it deems appropriate to achieve it, keeping it in the strictest objectivity. Once the new proposal has been made, it will be delivered to the spouses in the manner foreseen for the first proposal, proceeding to a new citation of the spouses.


All this process will be repeated until the agreement is reached if it is considered feasible. If the lawyer appreciates that reaching an agreement is impossible, it will be communicated to both parties, who will be summoned. At that meeting, they will be informed that the lack of understanding appreciated makes it necessary to end up the lawyer’s professional assignment, because there is a clear contrast of interests between the parties with respect to which the lawyer can not take sides.

In case of termination, the fees derived from the actions that have been carried out up to that moment will be required in any case, under the conditions established in the professional assignment sheet. For these purposes, it is safe to expect that the lawyer may be hired by only one of the parties, provided that there is consent of both parties on that particular point.

5.- THE INITIATION OF THE JUDICIAL PROCEDURE OF DIVORCE BY MUTUAL AGREEMENT

In the event that there is agreement on the content of the regulatory agreement of the parenting plan, the next step will be the filing of the claim or the divorce application, to which the aforementioned documents and the rest that are enforceable under the civil procedural law will be annexed. Provisional measures may also be proposed that will be in force until the end of the procedure, for which a summons may be convened and only those provisional measures will be discussed.

Once said demand or request is filed, the Court will call both spouses separately to ratify it-

Once the suit has been ratified, the Judge will summon the Public Prosecutor’s Office if there are minor children procreated in the marriage. In this case, the Public Prosecutor’s Office will issue a report that will decide on the provisions of the parenting plan and the regulatory agreement that in some way affect the aforementioned minor children.

From this point, the Court itself will examine the documentation that we have provided, paying particular attention to the regulatory agreement and the parenting plan. If the documentation is considered insufficient, a period of 10 days to complete it will be granted.

Finally, the Court will issue a resolution that will rule on the merits of the case. In this resolution, it will incorporate both procedures. The first one will deal with the concession or denial of divorce. Only in case of divorce is granted, the Court will decide on the second pronouncement, consisting of approving or rejecting the regulatory agreement and the parenting plan.

The granting of divorce will not involve any problem, since the causes of divorce are now free, so it will suffice to prove that the marriage has effects in Spain by providing timely documentation so that the divorce is estimated.

The approval of the regulatory agreement and the parenting plan can be a major problem. The Court can approve it totally or partially, and also deny it totally.

  • In case of total approval, the procedure ends here..
  • In case of partial approval or total denial, the Judge will grant a term of 10 days to the parties with the purpose of correcting the provisions of the regulatory agreement or the parenting plan that have not been approved.

The Court will reject those provisions of the regulatory agreement or the parenting plan that may affect the interests of the minor children. Not being so, the dismissal will only happen when any of the clauses violate the Law or public order, so it would be an exceptional case.

Against the resolution that concludes the procedure, if a measure other than those established in the regulatory agreement or in the parenting plan is agreed upon, an appeal can be filed within 20 days counted from the day following the notification of the claim. The Public Prosecutor’s Office looking after the interest of minors can also appeal even if the regulatory agreement and the parenting plan have been fully approved.

In any case, the measures proposed and admitted by the Court may be modified in the future, provided that there is a substantial change in the circumstances that arose in initiating the present divorce proceedings.

In addition to the above, if any of the aforementioned measures are breached, the affected spouse may initiate their execution. In those cases, when there is contraposition of interests, we can not assist the aforementioned spouse individually unless there is evidence of the express consent of both divorcees.

Last update: March 2018

PROCEDIMIENTO DE DIVORCIO CONTENCIOSO

The contentious divorce procedure is regulated in the articulo 770 of the Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil.

Demands of separation and divorce will be substantiated by the procedures of the verbal trial, in accordance with the provisions of capítulo I of the mentioned Law and subjected, additionally, to the following rules:

  1. The divorce petition must accompany the certification of marriage registration and, where appropriate, those of registration of the birth of the children in the Civil Registry, as well as the documents in which the spouse base his right. If patrimonial measures are requested, it must provide the documentation that allows evaluating the economic situation of the spouses and, where appropriate, the children
  2. Once the demand is presented, the spouse will have 10 days to answer it.
  3. To the hearing, parties must concur by themselves, with notice that the NO appearance without just cause may determine that the alleged facts are considered admissible to substantiate petitions of a patrimonial nature. The presence of the respective attorneys will also be mandatory.
  4. Evidence that can not be practiced in the act of the hearing will be practiced within the time limit set by the Court, which may not exceed thirty days.

During this term, the Court may decide ex officio on the evidence it deems necessary to verify the certainty of the circumstances in each case required by the Civil Code to decree nullity, separation or divorce, as well as those referring to measures that affect minor or disabled children, in accordance with the applicable civil legislation.

If the procedure is contentious and it is deemed necessary ex officio or at the request of the prosecutor, parties or members of the judicial technical team or the minor himself, The minor or disabled children will be heard if they have sufficient judgment and, in any case, those over twelve years old.

  1. At any time during the process, concurring with the requirements indicated at the  article 770 parties may request the continuation of the procedure by the procedures established in said article.
  2. In proceedings that deal exclusively with custody of minor children or food claimed on behalf of minor children, for the adoption of precautionary measures that are appropriate to mentioned procedures it will follow the procedures established in this Law for the adoption of previous, simultaneous or definitive measures in the nullity, separation or divorce proceedings.
  3. The parties by mutual agreement may request the suspension of the process in accordance with the provisions of the artículo 19.4 of this Law, to submit for mediation.

Última actualización: Marzo 2018

STABLE PARTNER PROCEDURE

The Spanish Civil Code equates stable partners with marriages

The Civil Code of Catalonia and the rest of applicable regulations to equalize the rights and obligations of stable couples with conventional marriages regarding successions, children in common, family reunification and economic compensation for work when a separation takes place.

Stable partners constituted according to articles 234-1 y 234-2 of the Civil Code of Catalonia.

REQUIREMENTS

Two people who live in a community of life analogous to marriage are considered stable partners in any of the following cases:

  1. a) If the coexistence lasts more than two uninterrupted years.
  2. b) If during the coexistence, they procreate a common

c)If they formalize the relationship in public deed.



A stable partnership cannot be constituted in the following cases:

  1. a) Unemancipated minors.
  2. b) Persons related by kinship in a straight line, or in collateral line within the second degree.
  3. c) People married and not separated in fact.
  4. d) People who live together with a third person.

Processing period Durante todo el año.

Resolution time– At the moment of the request.

Who can apply?– The members of the couple

Processing fee – Free

Procedure to start the process.- In person

Where can be done – Citizen Attention Office– OAC: 9:15-14:00 hrs.

Necessary documentation– Notice that: Some municipalities do not ask for all the requirements, so you have to find out in each one what is required, it depends on where the stable partners register.

– Photocopy of DNI of both Applicants or passport in case of foreigner

– Sworn statement (or in front of a notary) signed by the couple in which there is evidence that they do not have a kinship relationship by blood or adoption in a direct or collateral line in the second degree, they do not have any prior undisclosed marital bond and they are not registered in no other municipal register of similar characteristics and that have been a couple for two years.

– Certificate or status of the Civil Registry where the marital status of the two members of the couple is recorded.

Foreign people must provide one of these documents:

– Document of the consulate accrediting the civil status, translated into Spanish.

– Certificate of civil status issued in your country, legalized with the Apostille of The Hague.

Last update: March 2018


Also according to the art. 22 del Código Civil Español; Foreign citizens can apply for Spanish nationality