An Expert Discussion with Esther Susin on Divorce and Family Law in Catalonia

There are a lot of difficult considerations to be made when a family breaks down. When children are involved, it is imperative that their best interests are always at the forefront of any decision made. However, while both parties will undoubtedly have their child’s best interests at heart, being such a subjective matter means that they may not agree on how that is achieved. Whether children are involved or not, it is also important to consider the financial implications of the breakdown of the family – especially where large sums of money or assets are concerned. There are also legal considerations to be considered too, such as what the formal process of a divorce involves and whether it is better to proceed through the courts or alternative dispute resolution.
 
In this interview, we speak with Esther Susin of Barcelona-based E Susin International Law Firm to share her expertise on the family law landscape in the Autonomous Community of Catalonia (Barcelona, Tarragona, Lleida and Girona), with reference to Catalan law and the Spanish Civil Code.
 
Can you talk us through the divorce process in Catalonia?
 
Divorce, like death or the declaration of death, is not limited to suspending the effects of marriage but dissolving it. Therefore, divorce, unlike separation, produces the subsequent extinction of a valid marital bond that has existed and produced its typical effects up to the moment it takes place. The process for divorce is decreed, regardless of the form of marriage celebration, as established by Article 81 of the Spanish Civil Code:
 

1. At the request of both spouses, or one of them with the consent of the other, after at least three months from the celebration of the marriage.
2.  At the request of only one spouse, after at least three months from the celebration of the marriage. The time limit will not be necessary for the filing of the lawsuit when the existence of a risk to life, physical integrity, freedom, moral integrity, or sexual freedom and integrity of the plaintiff spouse or both spouses’ children, or of any member of the marriage is proven.

 
The plaintiff will be accompanied by a proposal of a regulatory agreement drafted by both parties, or by a proposal for the measures needed to regulate the effects derived from the divorce. There are two types of proceedings: those processed by mutual agreement of both spouses and those processed in a contentious manner.
 
The procedure processed by mutual agreement (as established by Article 777 of the Civil Procedure Act) is initiated upon the request of both spouses, or one of them with the consent of the other. The divorce petition will be submitted in writing, accompanied by the proposal of the regulatory agreements to the judge, or the regulatory agreement will be signed in front of the Clerk of Court or in a public deed before a notary if there are no minor children.
 
The petition for the litigation proceeding is submitted at the request of one of the spouses (as established by Article 81.2 of the Spanish Civil Code). It is processed in accordance with the provisions of article 770 and the following of the Civil Procedure Act. The deadlines for submitting evidence are extended, and all types of evidence are admitted in cases where the judge has doubts about the accuracy of the alleged cause of separation. A particularity of this type of process is that at any time, the parties can request that the initially contentious procedure be converted into a mutual agreement one. Therefore, the proposal for a regulatory agreement must be included.
 
Can premarital agreements be amended or cancelled to address new circumstances after marriage? If so, how often or at what stage should this be evaluated?
 
The so-called prenuptial agreements, well-known and widely used in some countries like the U.S., lack conceptual autonomy in Spanish Civil Law. In Spain, the autonomy of the will of future spouses is expressed through contracts known as “capitulaciones matrimoniales". In this contract, it is possible to determine or modify the matrimonial economic regime, align on inheritance agreements, make donations, and establish lawful stipulations even in anticipation of marital breakdown, as established in Article 231-19 of the Catalan Civil Code. Furthermore, the “capitulaciones” can be executed before or after the celebration of the marriage, even though they expire if the marriage does not take place within one year. Regarding the contractual capacity, agreements can be granted by those who can validly enter into a marriage.
 
To modify the agreements or render them ineffective, the consent of all the persons who had granted them is necessary, along with the execution in a public deed. Once the new matrimonial agreement has been formalised in a public deed, it must be registered in the corresponding Civil Registry (as established in Article 231-22 of the Catalan Civil Code). In addition, the Catalan Civil Code provides agreements in anticipation of a marriage breakdown in Article 231-20, which may be entered into the marriage contracts or in a public deed.
 
These agreements in anticipation of marital breakdown lack explicit legal recognition in common civil legislation, the Spanish Civil Code, although numerous provisions of the Code support the generic validity of marital agreements in anticipation of divorce. In this regard, we can affirm that these agreements should be considered prima facie valid and effective between the spouses as established in Articles 1255 and 1325 of the Spanish Civil Code.
 
How is child custody usually determined during the dissolution or separation of marriage?
 
During the judicial process of divorce, decisions regarding the custody of children can be made in different ways.
 
If the parents do not reach an agreement on child custody, the judge will evaluate the evidences brought by the parties, as well as the circumstances of the case in order to consider the best interests of the child as the primary factor in the final decision, taking into account the Article 2 of the Organic Law 1/1996, on the Protection of Children (Ley Orgánica 1/1996, de Protección Jurídica del Menor).
 
If the parents agree on child custody, they can submit the terms and conditions of the child’s arrangements in their “Convenio Regulador”, a contract that governs the divorce measures, to ensure balanced participation of both parents in the upbringing of the children. This agreement must be ratified by the parties in front of the Clerk.
 
Regarding this topic, the Supreme Court of Spain, in Judgment No. 280/2017 of 9th May 2017 (Sentencia del Tribunal Supremo 280/2017 del 9 de Mayo de 2017), states that Article 92.8 of the Civil Code does not permit the conclusion that joint custody is an exceptional measure; on the contrary, it should be considered normal and even desirable because it allows the children's right to maintain relationships with both parents to be effective, even in crisis situations, whenever possible and feasible. However, the same chamber has reminded that the interpretation of Articles 92.5,92.6, 92.7 and 92.8 of the Civil Code must be based on the best interests of the minors who will be affected by the measure adopted. Therefore, the general statement in favour of establishing a joint custody regime does not imply that such a regime should always be adopted, as it is necessary to consider the specific case.
 
At what age does the court consider the child’s wishes regarding visitation?
 
Children have the right to be heard in all cases. However, the rule set by the Supreme Court is that minors should be heard in such proceedings whenever they are older than 12 years or, even if they have not reached this age, they have sufficient maturity to be heard. So, in general, if minors are 12 years old or older, they make the statement directly to the judge in the presence of the prosecutor, through this judicial recognition. The regulation regarding the right of the child to be heard is found in:
 

• The United Nations Convention on the Rights of the Child (CRC or UNCRC), article 12.
• The United Nations General comment nº 12 (2009): The right of the child to be heard.
• The Organic Law 1/1996, on the Protection of Children, article 9. (Ley Orgánica 1/1996, de Protección Jurídica del Menor).
• The Law in Voluntary Jurisdiction 15/2015, of 2 July (Ley de Jurisdicción Voluntaria 15/2015, de 2 de julio).

 
Organic Laws are those related to the development of fundamental rights and public liberties (as established by Article 81.1 of the Spanish Constitution). Therefore, the children’s right to be heard represents a fundamental right. This recognition, in both national and international frameworks, underscores the intrinsic nature of this right as a human right, essential for the protection and development of children, ensuring their active participation in decisions that impact their lives.
 
In Catalonia, Article 221-6 of the Civil Code of the Autonomous Community states that minors, in accordance with their age and natural capacity, and in any case if they are 12 years old or older, have the right to be informed and heard before a decision is made that directly affects their personal or patrimonial sphere. Article 7 of Law 14/2010, of 27 May, on the rights and opportunities in childhood and adolescence, also declares that children from the age of 12 have the power to be heard and to have all the procedural guarantees of the right to a hearing.
 
Must a parent enforce a visitation order and what are the consequences for failure to produce the child for a visit?
 
The visitation order for children can be established by mutual agreement or by the judge. In the first case, the parents can present a child agreement (“pla de parentalitat”) in court and subsequently ratify its content, declaring also the days and hours that the children will spend with the non-custodial parent. This mutually agreed visitation schedule must be judicially approved.
 
In the absence of an agreement between the parents, the judge will determine the periods of time the children will spend with the non-custodial parent (as established in Article 236-11 of the Catalan Civil Code).
 
Regardless of the reason for not complying with the agreed-upon terms, failing to adhere to what is stipulated in the judicial resolution constitutes a legal breach. However, it is not an exclusive obligation of the non-custodial parent but also the parent who has custody. This parent must facilitate the visits and promote the child’s relationship with the other parent, as long as it does not negatively affect the child’s wellbeing.
 
In the event of a visitation schedule failure, it is recommended to talk in the first place to the other party to prevent a recurrence and reach an agreement. If no agreement is reached, it will be necessary to file a petition for the modification of the measures of the postmarital agreements, citing the new circumstances. If there is still no possible solution and visitation continues to be violated, a formal notice via certified mail will be sent to urge compliance with the court order or the agreements. If violations persist after the notice, it will be necessary to file a petition for enforcement of the court order or agreement, prompting the court to require the non-compliant parent to fulfill their obligation or provide reasons for refusing to adhere to the agreed-upon visitation order.
 
If the time limit has expired but the court has ex officio authorised the parents to comply but they continue to fail to do so, they may be punished with monthly fines in accordance with the provisions of Article 776.2 of the Civil Prosecution Act. These fines, which will be determined by the court, may be withheld for as long as is appropriate in each individual case. Another consequence through the civil proceeding, is the modification of the measures of the visitation order or even the loss of child custody.
 
Finally, though visitation breaches should be handled through civil proceedings, if the failure persists, it may constitute a crime of disobedience to authority under Article 556 of the Spanish Penal Code (CP).
 
What are the pros and cons of resolving divorce cases through alternative means such as mediation or dispute resolution?
 
Mediation as a method of divorce resolution is established in Article 233-6 of the Catalan Civil Code. It is stated that at any stage of the matrimonial proceeding, spouses may request to submit their disagreements to mediation, or alternatively, the judge may refer them to an informational session on mediation.
 
In common civil legislation, at a state level, there is no specific regulation on family mediation, but as a civil matter, it is included in Law 5/12 of July 6th, on mediation in civil and commercial matters. In addition, Article 770.7 of the Spanish Civil Prosecution Act establishes that the parties by mutual agreement may request the suspension of the process to submit to mediation.
 
Pros of resolving divorce cases through mediation:

• It is a process that allows both spouses to participate, facilitating their communication. This enables each party to present their claims, determine their agreements, listen to the other party, and exchange positions. It promotes dialogue and helps reach consensual solutions.
• It is an impartial and confidential process. The mediator is a neutral third party who will not take sides with either of the spouses.
• It has lower economic and emotional costs. If the mediation process ends with an agreement, it will allow the parties to preserve family relationships and avoid going to court.
• It speeds up the procedure and the solution. Mediation helps expedite the process since there will be a maximum number of scheduled sessions, allowing parties to reach an agreement in weeks.

 
Cons of resolving divorce cases through mediation:

• Despite the advantages it offers, mediation is not always the solution for all types of divorce. Mediation works based on the free will of the parties involved. This means that there is the possibility of disappointment if one party fails to commit. There can be occasions where one party may show a less proactive attitude than the other, which can lead to discouragement or frustration in the other party.
• Family mediation is not advisable for cases where one member of the couple does not exercise control over their will and, therefore, is incapable of assuming acquired commitments or even of acquiring any commitment.
• Family mediation is also not advisable in cases where there is domestic violence. In these cases, decisions will inevitably be conditioned by the power imbalance that exists between the couple, leading to the fear of the other influencing agreements, with the consequent risk to the family members who are victims of violence.
• Finally, it would also be necessary to consider the legal weakness of mediation in the Spanish legal system and in the regional ones (“Comunidades autónomas”).

 
For more information or to find out how Esther Susin and E Susin International Law Firm can help with your divorce proceedings, visit www.esthersusin.com, call +34 93 7270 47, or email advocada@esthersusin.com.