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Expat Investor : July August 2007
Love, marriage and divorce for the international couple How to wed in Spain Elizabeth Hicks, partner and head of family law with Irwin Mitchell solicitors, points out that location really does matter when it comes to untying a marital knot. Picture the scene -- English man meets Spanish woman, they fall in love and marry. Rather than cause any problems with their respective families at the start in terms of where the wedding should be, they fly to Disneyland, Florida and marry there. He (Anthony) is an architect; she (Carla) is an engineer. They structure their work so that they spend the summers in England and the winters in Southern Spain. Sadly, the marriage breaks down and they decide to divorce. Some of the more common questions asked in such a situation include: Does it make a difference that they married in America? Can they get divorced in England? Can they get divorced in Spain? Which country is the 'best' for them to effect their divorce? Where a couple decide to marry has no bearing at all on their ability to get divorced in England and Wales. What is required is that their requirement on the basis of her nationality and of having lived there for six months immediately before issuing proceedings (on the basis that she issued proceedings after spending the winter there). It is also possible under Spanish law that the courts would be satisfied that they were both habitually resident there. Anthony could issue proceedings in England and Wales on the basis that he is domiciled there (which under current applicable family law essentially means he intends to die in England or Wales). He is also habitually resident there. Indeed, they both qualify in terms of being habitually resident in England and Wales (even though they divide their time between the two countries). The next question is, where would it be best for them to divorce? To answer this question solicitors would need to make a close examination of their assets, liabilities, income and expenses and this would involve consideration of the financial law applicable on divorce in Spain as well as the financial law on divorce in England and Wales. Essentially, consideration would be given at a very early stage, and even before divorce proceedings were issued, as to which country would produce the most favourable financial outcome for either Anthony or Carla. It is probable that the answer would be different for each of them -- and there would then be a race to issue FAMILY FINANCES expatinvestor.com 14 EXPAT INVESTOR July/August 2007 Fast Facts 66410 Fast Facts 66411 divorce proceedings in Spain or England and Wales. Once divorce proceedings have been issued in a country that is a signatory to Brussels II, it is that particular country which will then deal with the divorce and associated financial matters. If the countries in question were England and America (or any other country which is not a signatory to Brussels II) then once again, an early examination of the financial aspects of the divorce would be necessary -- and if Anthony decided to issue in England and Wales, Carla could challenge the jurisdiction on the basis that a more 'convenient' jurisdiction would be America. Such a challenge would involve a detailed consideration of where the assets were situated, where the parties had spent more time, the existence of any agreement on a divorce and other factors. Therefore, for an international couple whose marriage gets into difficulty, it is essential to obtain advice at an early stage in all countries where it may be possible, either under the test of domicile or habitual residency, to get divorced. The consequences of divorcing in the wrong country could be very expensive! To find out more from Irwin Mitchell enquire through the fast facts number below. marriage is a valid marriage and complying with the requisite laws of the country where the ceremony took place. Ordinarily, providing the marriage certificate and, if it is in a foreign language an English translation, is proof enough that the wedding is valid. On 1 March 2001 European Council Regulation (EC) 1347/2000 came into force in a number of European countries. It is commonly known as Brussels II. The initial signatories were Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the UK, and it now applies to most Member States. Under Brussels II in order to get divorced in one of the countries which is a signatory to the Convention, it is necessary to fall into one or more of the following categories: The couple are both habitually resident in a signatory country. The couple were both last habitually resident there and one of them still lives there. The respondent to the proceedings is habitually resident in a signatory country. The Applicant is habitually resident in a signatory country on the basis that they lived there for 1 year before presenting the divorce petition; or if they are a national of the country (or in the case of England and Wales domiciled there) that they have been habitually resident there for six months before issuing proceedings. The couple are both nationals (or in the case of England and Wales they are both domiciled) of that country. The test of habitual residence will vary according to the case law and statute of each country. In England and Wales, it is deemed possible to be habitually resident in more than one country at the same time. Using the example referred to above, Anthony and Carla would be considered, under the laws of England and Wales, as being habitually resident in both England and Spain. Carla is also a Spanish national. It is likely (although not certain) that she would be classed as being habitually resident in Spain. If she is, it would be possible for them to issue proceedings in either Spain or England. In Spain, Carla would satisfy the Over 50,000 British people get married abroad every year. Banco Halifax Hispania believes Spain is an ideal location and casts light on Spanish marital traditions. Getting engaged in Spain: The engagement of a couple is symbolised by the giving of a necklace or ring to the bride to be. At this stage the groom asks the bride's father for permission to marry his daughter and may present the father with a watch. Engagements in Spain typically last several years. During this time a couple may buy a home, but it is not common for them to live together. The home is often furnished and rented out. This helps with the mortgage payments until the couple marry and move into the house together. Getting married in Spain: Just as in Britain, it is considered unlucky for the bride to see the groom the night before the wedding. The bride will travel to the church with her father, who will give her away. The bride may wear a traditional white dress or, alternatively, a flamenco dress. Several girls and boys will be dressed to match. Wedding rings in Spain are worn on the right hand. The bride and groom may exchange a pouch containing 13 gold coins during the ceremony. This is considered to be a symbol of sharing. Traditionally, these coins would have been in the family for generations, although imitation gold coins are increasingly used. The bride's bouquet is thrown into the air at the end of the ceremony and the girl who catches it is expected to be the next to get married. The bride may also have a basket of pins that resemble lilies or orchids. These pins are handed out to all the girls at the reception, who wear them upside down whilst dancing. Tradition states that if the pin falls out the girl will marry. If you want to get married in Spain you must take the following issues into consideration: You must be over the age of 18. You must be a resident in the consular district where the marriage is to take place at least 21 days before the wedding. An application form available from the Civil Registry or the District Court of the bride's residence must be filled out. This form details the name, occupation, domicile, residence and citizenship of the couple and their parents, and must be signed by both parties. Your original birth certificate must be provided -- this must be translated into Spanish and the translation authenticated by the Spanish Fo r eign Ministry. Your passport must be provided. Proof must also be provided that both parties are free to marry. A document to testify this can be obtained at the Civil Registry office. Divorce, annulment or death certificates from previous marriages must be presented. If this is relevant you will also need to present an original copy of your previous marriage certificate. Again, this must be translated into Spanish and the translation authenticated by the Spanish Foreign Ministry. Religious marriages must be organised via the local church authorities and the church involved must be licensed to conduct marriage ceremonies. To be accepted under Spanish law, religious marriages must also be registered with local civil authorities. The paperwork involved is lengthy and time-consuming, so make sure that you leave enough time before your wedding day for your application to be processed. To avoid disappointment and frustration, consult with the regional authorities where you plan to marry well in advance of your planned marriage date. And remember, weddings in English will need to be translated. Ian Smith, head of European operations at Halifax plc, adds, "Spain is an ideal location and the perfect setting for a romantic wedding. "It also remains the most popular destination for British people buying property in Europe."