International divorce between the UK and Spain raises complex legal and strategic issues. Following Brexit, the legal landscape has shifted from automatic EU regulations to a more nuanced framework of international conventions and national laws. For British expatriates, early decisions on jurisdiction and financial strategy are not just tactical—they are definitive.
1. Jurisdiction
In the post-Brexit era, the automatic lis alibi pendens rule (where the first court seized takes priority) no longer strictly applies between the UK and Spain. Instead, English courts have seen a return to the doctrine of forum non conveniens, allowing them to stay proceedings if Spain is deemed a more appropriate forum.
However, timing remains critical. While Spanish courts rely on habitual residence and nationality (Arts. 22 quater LOPJ), English courts still offer the powerful hook of domicile. A British expat may be resident in Spain but remain domiciled in England, potentially unlocking the more generous financial relief of the English Family Court.
2. Matrimonial Property Regimes: The Spanish Trap
A common pitfall for British expats is failing to identify their applicable matrimonial regime under Articles 9.2 and 9.3 of the Spanish Civil Code.
- In Common Law jurisdictions (England & Wales), there is no “regime”; courts have wide discretion to redistribute assets based on fairness and need.
- In Spain, your marriage is governed by a specific regime. While sociedad de gananciales(community property) is the default in most of Spain, regions like Catalonia or the Balearic Islands default to separación de bienes.
Determining which regional law applies—often based on the first common residence after marriage—is the first step in any technical audit of the marital estate.
3. Financial Outcomes and the “Safety Net” of Part III
There is a stark contrast in philosophy:
- England & Wales: Focuses on “needs” and “compensation,” often resulting in lifetime spousal maintenance or significant pension sharing orders.
- Spain: Focuses on “property rights.” Spousal maintenance (pensión compensatoria) is increasingly rare, short-term, and difficult to obtain.
The Strategic Key: If a divorce is concluded in Spain and leaves a spouse in financial hardship, we can invoke Part III of the Matrimonial and Family Proceedings Act 1984. This allows the English court to grant financial relief after a foreign divorce, provided there is a sufficient connection to England.
4. Children and Maintenance: International Enforcement
While Brexit removed the Brussels II bis Regulation, both countries remain signatories to the 1996 Hague Convention (on parental responsibility/protection of children) and the 2007 Hague Convention (on maintenance). Child maintenance in Spain often extends well beyond age 18 if the child is not financially independent—a technicality that often surprises British parents used to the Child Maintenance Service (CMS) jurisdiction ending at 18 or 20.
5. The Tax Dimension: The Silent Partner in Divorce
A settlement is only as good as its net value after tax. In a UK-Spain context, three pillars must be analysed:
- Capital Gains Tax (CGT): The timing of asset transfers is vital to avoid triggering “dry tax” liabilities in both jurisdictions.
- Spanish Wealth Tax (Impuesto sobre el Patrimonio): High-net-worth individuals must structure settlements to mitigate ongoing exposure to this tax, which varies significantly between Spanish Autonomous Communities (e.g., Madrid vs. Valencia).
- The Beckham Law: For those under this special tax regime in Spain, the treatment of foreign-source income during divorce requires specialised cross-border planning.
Conclusion: A Multidisciplinary Strategy
A UK-Spain divorce is not a single legal event but a multidisciplinary challenge involving family law, private international law, and tax planning. Success requires a coordinated strategy that looks at the global picture before the first petition is filed.
Del Canto Chambers advises British expatriates on complex international family law matters, delivering coordinated UK–Spain strategies designed to protect financial security and family stability across borders.
