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How to sort out a divorce 

 

Q: I’m an English resident in Tenerife and I am getting divorced. How should I proceed?

A: This is a common source of confusion for British residents living on the island.

With personal matters such as divorce or probate, Spain always applies the law of nationality relevant to the person in question. This will apply regardless of how long that person has resided in Tenerife. Spanish law will only ever be applied if that resident subsequently applies for full Spanish nationality.

So in the case of an English resident in Tenerife, English law will be applied. It is therefore important to ensure that the solicitor instructed has a detailed understanding of English divorce law in addition to either Spanish or English court procedure. The lawyer for the party commencing the proceedings will also have to prepare a detailed Statement of Law for the Judge illustrating all relevant points of English law applicable to the couple’s circumstances.

But what if a married couple have different nationalities? In that instance, the rules state that if both parties are currently resident in Tenerife at the time of bringing divorce proceedings, then Spanish law will apply. However, if one party has left the island, then we must ascertain the location of the couple’s most recent principal residence during the marriage, presumably in this instance, in Tenerife. Hence Spanish law would then be applied.

So where should divorce proceedings be issued? If Spanish law is to be applied and the couple still live in Tenerife, then the obvious starting point is the local Spanish Court in Tenerife.

However, where English law is to be applied, the correct location is determined by the residence of the party commencing the proceedings. For instance, if a husband returns to England whilst the wife remains in Tenerife, then the obvious choice for the husband is to issue proceedings in England (subject to having lived there again for 6 months). The wife, on the other hand, should issue proceedings in Tenerife. In either case, the Judge will require that the issuing party serves copies of the papers on the other party overseas or on their appointed lawyer.

In the case of the couple having different nationalities and where one party is in England and one is in Tenerife, there is a further option, known as ‘forum shopping. This is where each party will consider where they are likely to get a better financial settlement depending on the laws applied by each country. In this scenario, proceedings commenced in England will proceed according to English law, whilst proceedings commenced in Tenerife would follow Spanish law. For a rich couple, the financial difference could be considerable.

Once a choice has been made and once a court has accepted the proceedings, then the matter will proceed in that chosen country and cannot be changed by the other party.

Tenerife Solicitors have both an English Solicitor and Spanish Lawyer experienced in both English and Spanish divorce matters. We also have office addresses in both England and in Tenerife at which we can receive service of documents on behalf of either party.

Call us now to arrange a fixed fee consultation for only 50 Euros (fully refundable against any subsequent work we carry out on your behalf). Tel: 922 717845 (or 0871 218 0063 from the U.K.) or visit our website at www.tenerifesolicitors.com