LAST UPDATED 15th December 2022

According to official figures, over 35% of marriages among British partners are destined to end in divorce and that figure appears to be rising year on year.

Although there are no precise figures available for divorces amongst UK expats, it is anticipated that the number may be even higher. Whilst some married couples believe that living abroad will enrich their lives, a number of factors, such as finding work, living costs, missing family and friends, language difficulties or even just plain homesickness can test even the most sturdy relationships.

In many cases, one or other partner may think about applying for divorce. But who should apply for the divorce, and where?

A scenario common among foreign married couples that separate whilst living together in Tenerife is for one partner to move back to their home country of nationality. whilst the other party stays in Tenerife. Where the marriage cannot then be reconciled, one partner will eventually look to get the ball rolling with a legal divorce. But where both partners are now living in different countries, which country should proceedings be commenced in?

Choosing the right place to start divorce proceedings

Let us look at the common scenario where one or both partners are of non-Spanish nationality and either was living (or is still living) in Tenerife and either is looking to get divorced. This raises the following questions:

1. In which country can or should divorce proceedings be issued?
2. Which national law governing divorce matters that chosen country apply to the couple’s circumstances?
3. What happens procedurally once divorce proceedings are commenced in one country?

Question 1 –   In which country can or should divorce proceedings be issued?

The starting point is EU regulation 2201/2003. This applies to all EU Nationals, but NOT UK Nationals. We will separately look at the rules for UK Nationals further below, as those have changed since Brexit.

So for EU Nationals (i.e. a passport holder from an EU country), you are allowed to start divorce proceedings in any country that ANY ONE of the following scenarios applies:

1. a) where the spouses are currently habitually resident, OR

        b) where they were last habitually resident together as a couple, OR

       c) where the applicant is habitually resident for at least 1 year prior to commencing the divorce; OR

      d) where the respondent (defending spouse) is habitually resident now, OR

      e) the country of which both spouses share the same nationality.

[So where ANY ONE of the above applies, the applicant can choose to issue proceedings in that country. So in certain circumstances, you may have a choice of 2 countries in which to issue divorce]

For UK nationals, the above doesn’t apply because Regulation 2201/2003 has been repealed. So this basically gives UK Nationals the choice of starting divorce proceedings in the country in which either party is habitually resident at the date of starting the divorce (this typically means having resided there for more than 6 months). Alternatively, to start proceedings in the UK, you may also do so if you (the applicant) are merely ‘domiciled’ in the UK (i.e. your strongest connections are there, your family base/home is there, or your main centre of business interests is there etc).

One quirk of the law is where an application for maintenance/alimony is issued, this should be issued in the same place as the main divorce proceedings are issued. However, if you want to issue a maintenance application separately without actually starting a divorce (possibly because you aren’t actually married), you may issue it in the country where either the applicant or respondent are habitually resident (which in some circumstances could give you a choice of 2 countries).

Question 2 –  Now you have selected a country to issue divorce proceedings in, what divorce law should that country apply?

We will now look at each of the 3 most common possibilities that you will have arrived at under question 1 above;

Issuing Divorce Proceedings in UK

This is perhaps the simplest one to answer. The Courts in England, Wales, Scotland and Northern Ireland always apply their own laws to any divorce issued in their country, regardless of the nationality or background of either party to the marriage. As a rule of thumb, UK divorce laws are generally more favourable towards the weaker financial party in a divorce.

Issuing Divorce Proceedings in Tenerife, Spain

Article 107 of the Spanish Civil Code (‘Codigo Civil’) states that the law applicable to divorce proceedings in Spain will be dictated primarily by EU law, or if that doesn’t apply for any reason, then Spanish law will apply.

However, the only relevant EU regulation (1259/2010) only governs preliminary matters such as the basic legal right to get divorced and other minor issues. It does not extend to the main material issues of importance in a divorce, namely financial settlement, maintenance and children issues.

So as EU law does not cover financial settlement, maintenance or children issues, Article 107 above states that Spanish law will then apply by default.

Under Spanish law, we have the concept of matrimonial regimes. Such regime is either chosen by a couple upon getting married in Spain, or if not chosen, the default regime is always applied.

Foreigners married outside Spain but who get divorced under Spanish law will also fall under this default regime, which is known as Community Property (‘Comunidad de Bienes’). This basically states that each party retains assets they each owned prior to the marriage, but that everything accumulated or acquired during the marriage is to be shared 50/50. Hence, this provides a relatively easy calculation of entitlement under a divorce, by simply calculating the value of all such new assets accumulated since the date of marriage.

In addition, Spanish law also allows either party to apply for separate maintenance/alimony and for use of the matrimonial home or other residential property for a period to be determined (e.g. a wife might be granted use/possession of the family home until young children grow up etc).

Issuing Divorce Proceedings in any other EU Country

The applicable law will depend on the jurisdictional rules of the EU country in question, so independent legal advice should be obtained from a divorce lawyer in that country.

 Question 3 –  What happens once divorce proceedings are commenced in one country?

For divorces issued in EU countries, the situation is clear. Regulation 2201/2003 provides that once divorce proceedings are issued and accepted by any EU country, then all future proceedings associated with or ancillary to the divorce (e.g. maintenance, financial resolution, child access or custody etc etc) must proceed in the same country. So in situations where there are 2 possible EU countries in which proceedings can be issued, the parties may end up in a race to issue divorce proceedings in their preferred country first.

For divorces issued in the UK, the above regulation no longer applies. The UK courts will therefore CONSIDER allowing a party to issue a divorce or associated application in the UK despite proceedings already having been issued in another EU country (e.g. Spain). The criteria is rather vague and has yet to be tested in detail, but broadly speaking, the UK court would need to be satisfied that the applicant did not get fair financial consideration in the other country.

The above information is generic and for information purposes only and should not be construed as legal advice. For proper legal advice and assistance on divorce and related matters in either Tenerife or the UK, we recommend that you consult TENERIFE SOLICITORS, who are English Solicitors and Spanish Abogados with over 14 years experience in cross-border divorce matters.

For more information on divorce or separation or to arrange a fixed fee consultation, please contact TENERIFE SOLICITORS here