TLACORP in the second day of the I SPANISH-BRITISH LAWYERS MEETING in Malaga treated about:
– FAMILY LAW from a Spanish-British point of view – Differences between Spanish Divorce and UK Divorce, Children care, maintenance, Law in application, conflicts of jurisdictions, etc.
– CONVEYANCE – differences between Spamish conveyance andconveyance in UK
– INHERITANCE – Common problems like execution of UK inheritance in Spain, validity of Wills and Probates, Spanish Inheritance Tax, etc.
– TRUST – Concept and problems to recognise this figure in Spain
PART I.- FAMILY LAW:
Let me resume you which were, in my opinion, the main points treated at the meeting:
– Process of divorce use to take 5-7 months in UK
– In UK, legal fees use to be 1.000-2.000 GBP
– Although in UK there are “causes” of divorce (while in Spain causes are not necessaries to set up a process of divorce), in the UK practice any causes argued are recognize (even arguments like “he does not like my friends”, or “he does not take care of the dog!”)
– It was commonly accepted that the economical expectatives from the “weak part” of divorce are higher in UK than in Spain. I mean that, the UK divorce system will be more “generous” with the weak economical part.
This fact, and the freedom of residence established between EU members, creates what it is called as a “Forum shopping”, which is that the parts with the intention to get divorce change their residences to countries in which the law could be more favourable. For example, the strength part will always prefer to get divorced in Spain, because the compensation to the other will be lower than the one obtained in UK, and he/she could chose Spain to get the residence here in order to proceed with t a Spanish divorce. As opposite, the weak part can chose to change the residence to UK in order to get a UK divorce with a higher compensation.
This “Forum shopping” can be detected by the Judges, and can then refuse to be competent if they consider that the part was changing the residence just to obtain a benefit on the compensation.
– It was also commonly agreed that Tribunals in Spain are more open to apply the national law of the divorce applicants (ie the UK law), than UK Tribunals. In the majority of the cases, the UK Tribunals will apply the law of the nationality from the parts.
– Residencia Habitual v UK Domicile. It was also commonly accepted that the UK Laws and Tribunals, to consider the eventual application of Divorce Law or to declare their selves competent in the case. UK Tribunals have a wider concept of Residence than in Spain. They use the concept of the “Domicile”. I will try to explain the differences:
– UK Residence is obtained when the citizen pass more than 183 days in the tax year.
– UK Permanent or Ordinary Residence can be considered as “habitual” residence. It can be understood as the place in which the citizen has the “intention” to live. At this point, can happen that the person has a house in Spain, passing more than 183 days per year, but, if he/she visits regularly UK for an average of 91 days or more, then he/she can be considered as “Permanent Resident”.
– UK Domicile involves complicate law considerations. It can be explained as the place in which the person chooses for living “permanently” without any kind of doubts.
Common law recognises 3 kinds of domicile:
a) Domicile of origin: Parents domicile at time of birth
b) Domicile of dependence: Children and mental disables have the domicile of their parents or representatives.
c) Domicile of choice: This would be the “pure concept” of the domicile. It is the place in which the person wants to live permanently.
“Domicile of choice” can change, and, in case of doubt, or when there is not a clear place to be considered as domicile, the “domicile of origin” will be the one considered for legal issues.
Problems to understand the UK citizens in Spain taking into account what considered above, together with the difficulties to understand residence in Spain, makes necessary to take the proper legal advice, in order to study each particular situation with detail.