In an international divorce in Spain, the fact that an asset is in one spouse’s name does not mean it belongs only to them. If the marriage took place in the Netherlands, the law governing the matrimonial property regime may be Dutch law, which is based on community of property, and under that regime the position put forward is that a home bought by one spouse belongs 50% to each. This article explains which court decides, which law applies to the assets, how Dutch community of property works and how to claim the financial settlement, with a practical case.
What Is an International Divorce in Spain?
An international divorce is one where the marriage has a foreign element: different nationalities, a marriage celebrated in another country, or assets in several countries. It is very common on the Costa del Sol, where many Dutch, British, Swedish and German couples live.
In these cases, three separate questions have to be resolved:
Which Court Has Jurisdiction Over the Divorce?
Spanish courts can hear the divorce when the jurisdiction criteria of Regulation (EU) 2019/1111, applicable since August 1, 2022, are met. These include the spouses’ habitual residence in Spain.
Which Law Applies to the Divorce?
It is determined under the European rules on the law applicable to divorce and legal separation.
Which Law Applies to the Couple’s Assets?
This is the question that raises the most doubts, and it is not automatically answered by Spanish law. It is explained in the sections below.
A Practical Case of International Divorce
A Dutch couple married in the Netherlands and live in Spain. They separate in winter and want to proceed with the divorce and the financial settlement. During that process, the husband leaves the family home, buys a house and registers it 100% in his name, convinced that, having paid for it with money he believes is his, it belongs entirely to him.
The position put forward is the opposite: the matrimonial property regime is community of property, so the house belongs 50% to each spouse, even if only one appears on the title deed.
Married in the Netherlands, Divorcing in Spain: Which Law Applies to Your Assets?
Divorcing in Spain does not mean the Spanish matrimonial property regime applies. Divorce and the matrimonial property regime are two different matters, each with its own rules.
Marriages Celebrated on or After January 29, 2019
Regulation (EU) 2016/1103 governs the law applicable to matrimonial property regimes in the participating states, including Spain and the Netherlands. It allows spouses to choose the applicable law. If they have not chosen, the general rule is the law of the state of the spouses’ first common habitual residence after the wedding and, failing that, the law of their common nationality or the law with which they have the closest connection.
Marriages Celebrated Before That Date
They are governed by the rules that preceded that Regulation, so the date of the wedding is a key piece of information for the analysis.
That is why, for a Dutch couple married in the Netherlands, the first things to study are the date of the marriage, whether there was a prenuptial or marital agreement, and where they set up their first residence.
Community of Property in the Netherlands and Spain’s Sociedad de Gananciales: Who Owns What?
Dutch community of property is equivalent to Spain’s sociedad de gananciales: assets acquired during the marriage belong, in principle, to both spouses, regardless of who appears as the holder.
The Wedding Date Matters
In the Netherlands, marriages celebrated on or after January 1, 2018 are governed by default by a limited community of property, which excludes, for example, what each spouse owned before the marriage and what they received by inheritance or gift. Earlier marriages were governed by a universal community of property. Spouses may also have agreed on a different regime before a notary.
What It Means in Practice
In an international divorce between spouses under community of property, the fact that an asset is registered in one spouse’s name does not by itself determine who owns it. What matters is the applicable regime, when and with what funds the asset was acquired, and whether an agreement modifies it.
International Divorce and Buying a Home During the Separation
This is the situation in the practical case: one spouse leaves the home, buys a property and registers it 100% in their name while the divorce is still open.
Why the Name in the Registry Does Not Settle the Question
The fact that the deed and the Land Registry show a single owner does not prevent a claim that the asset forms part of the common property. That claim is made precisely in the settlement of the matrimonial property regime.
The Position Put Forward
Even though he bought it and it is entirely in his name, the property belongs 50% to him and 50% to her, because of the community of property regime. This reasoning depends on the applicable regime being community of property and on the specific circumstances of the purchase.
Financial Settlement in an International Divorce: How to Claim Your Share
The settlement of the matrimonial property regime is the stage where it is determined which assets form part of the common property and what corresponds to each spouse.
Usual Steps
- Determine which law governs the couple’s matrimonial property regime.
- Identify the assets, rights and debts, including those acquired during the separation.
- Document when and with what funds each asset was acquired.
- Claim each spouse’s share, by agreement or through the courts.
What to Do as Soon as Possible
Do not assume that an asset belongs only to whoever bought it, and gather the documentation of the purchase and of the funds used.
At Toscano Lex we advise on international divorces with settlement of the matrimonial property regime. You can get to know the firm on our website and follow us on social media:
Frequently Asked Questions About International Divorce in Spain
What is an international divorce?
It is a divorce with a foreign element, such as the spouses’ nationality or the country where the marriage took place.
Can I divorce in Spain if I married in the Netherlands?
Spanish courts may have jurisdiction, for example when the spouses habitually reside in Spain, under Regulation (EU) 2019/1111. Each case must be reviewed individually.
I married in the Netherlands and I’m divorcing in Spain: which matrimonial property regime applies?
It depends on the date of the marriage, on whether there was an agreement, and on where the spouses set up their first residence. In the case described, community of property, equivalent to Spain’s sociedad de gananciales.
Does Spanish law apply to my assets because I’m divorcing in Spain?
Not necessarily. Divorce and the matrimonial property regime are governed by different rules.
If my spouse buys a house in their own name after we separate, is it theirs alone?
In the case described, the position put forward is that it is not: under the community of property regime, the home belongs 50% to each spouse even if it is registered 100% in one spouse’s name.
Can I claim a financial settlement in an international divorce?
Yes. The settlement of the matrimonial property regime is part of the process and allows each spouse to claim the share that corresponds to them.
Which documents should I gather?
The marriage certificate, any marital agreements, the deeds of the assets, and documentation showing the funds used to buy them.
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Email: info@toscanolex.es
Website: www.toscanolex.es
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