Divorce & Children

DIVORCE FOR TENERIFE EXPATS – How does it work?

According to UK government statistics, 35% of all marriages are predicted to end in divorce. Although no accurate statistics are available amongst UK expats living in Spain, it is believed that the number may be even higher. Whilst many couples believe that living abroad will improve their lives, a number of factors, such as financial considerations, missing friends and family, the language barrier or just plain homesickness can put a strain on even the most committed relationships.

The question we are asked most is “I am British, so should I commence proceedings in the U.K. or here in Tenerife?” That depends on the circumstances. The principal rule is that in order to issue proceedings in a particular country’s courts, at least one party must be “habitually resident” in that country for at least 6 months prior to commencement of the divorce proceedings. If that applies, then either party can commence proceedings in that country.

Obviously if both parties have been habitually resident in Tenerife for the past 6 months, then the Spanish courts will have exclusive jurisdiction. However, where there is a choice of UK or Spanish court available to the parties (commonly referred to as ‘forum shopping’), how do you decide which country is appropriate for your circumstances?

Many Brits prefer to commence proceedings in their country of origin, perhaps due to there being no language barrier, or perhaps due to the perception that legal proceedings in the U.K. are faster, less bureaucratic and come with less uncertainty than typical legal proceedings in Spain. Unfortunately, that perception does not always reflect the reality and there are also other factors affecting which country is more beneficial, depending on personal circumstances.

Even if proceedings are ultimately commenced in Spain, there is then a further question over which country’s law should be applied to the divorce or financial separation.

The starting point is that if at least one of the divorcing parties has British nationality, the couple can actually agree whether to apply UK or Spanish law and the Spanish Judge will be bound by that decision. If no such agreement can be reached, the starting point is to apply the country’s law applicable to the last common place where the couple were both habitually resident either at the time of divorce proceedings or up to one year before. However, if each has been living in different countries for more than a year before the divorce is commenced, the next step is to apply the law of nationality if BOTH parties have that same nationality. Failing all of the above, the default position will be to apply the law of the country proceedings are being commenced in (i.e. Spain).

Given that each country’s laws can potentially result in a very different financial outcome for the parties, the above can often turn into a strategic battleground.

Where divorce is ultimately commenced in the UK, whilst it is possible to instruct a U.K. based solicitor remotely, most expats appreciate being able to instruct a local Tenerife based solicitor with a U.K. office who can handle the whole process from Tenerife, typically at rates substantially lower than those charged by the average U.K. solicitor.

An English Solicitors with an office in Tenerife, we can seamlessly handle the financial aspects of a divorce in England & Wales where the spouses have assets located in Tenerife. Many U.K. solicitors would not wish to directly handle a financial settlement or enforcement against Tenerife based assets, as they are not familiar with Spanish laws or procedures. Instead they typically choose to subcontract this to a firm based in Tenerife. Indeed, we often receive instructions from U.K. firms for such work where the end clients did not realise they could have cut out the middle man and instructed us to handle the whole process directly.

For more information or to arrange a €60 fixed fee consultation (which is credited against any subsequent work), please contact Tenerife Solicitors on 922 717845 (or 0871 218 0063 from the U.K.) or CONTACT US.

CHILDREN

Whether as part of a divorce separation or where an unmarried couple have children, problems can often arise regarding custody, access to, or maintenance provision for children. Sometimes, international issues arise where one parent takes a child out of his or her habitual country of residence without the permission of the other parent (which is generally illegal).

Tenerife Solicitors has substantial experience in handling child disputes. We take a conciliatory but robust approach towards child issues on behalf of our clients and we appreciate that resolving problems regarding children often requires a wider viewpoint beyond the actual letter of the law.

To discuss your needs and/or arrange a €60 fixed fee consultation (which is creditable against any subsequent work we do) please call us on +34 922 717845 (or 0871 218 0063 from the U.K.) or contact us at the link below CONTACT US.