Everyone wants to believe that when they get married it will last forever. But unfortunately as many as 50% of all marriages will end in divorce. And this can be a very complicated legal process if you have children or share property together.
So what happens to your property in Spain if you get divorced? The division of property can be difficult and can cause friction, particularly if the divorce is already acrimonious. And if the property is mortgaged, this only adds an extra layer or complication.
With that in mind, here’s everything you need to know about what happens to property when you get a divorce in Spain.
Who Gets The Property If You Divorce In Spain?
There is no straightforward or simple answer to this question. The legalities surrounding who has the right to a property are complicated and depend on circumstances.
If there are no children in the marriage and the spouses each own equal shares of the property, there may be an agreement to sell the property and divide the proceeds equally. If there are dependent children then the primary caregiver may have the right to remain in the property.
Because each marriage is different and each circumstance is different there is never a straightforward answer as to who will get the property in the case of a divorce.
What Happens If The Property Is Mortgaged?
If the propery is mortgaged then what will happen depends on whether the mortage is in one persons name, both names, and who has been making the mortgage payments.
If the loan agreement is signed under both names then both people should continue to pay the monthly fees and technically the financial institution may claim the payment from both holders. It doesn’t matter whether you are living in the property or not, and your marriage status doesn’t matter either. If your name is on the mortgage agreement then you are liable for any payments due and you should continue making your monthly mortgage payments.
However it’s not always that simple. If you move out of a mortgaged property then you can work with your former spouse and agree on who keeps the mortgage as part of your distribution of assets.
If one person agrees to take on the loan on their own, you may be best served to ask the bank for a mortgage restructure. This will offer legal protection to both parties.
Its worth noting that some banks may reconsider the terms of the mortgage offer depending on the different financial positions of each party and how the change in contract could potentially affect the repayment of the loan. This means that you may find that if you don’t have robust financial circumstances then your lender may refuse to modify your loan.
What Happens If You Have Children?
As we have already mentioned above, if you have children then this will have a significant impact on what happens to your property when you divorce. Like everything else to do with divorce and property division, this can be complicated. But in the simplest terms, which parent has child custody will direcly affect the use of the house and the mortgage.
As a general rule, in Spain children stay in the family home with the parent who has been granted legal custody, although the payment of the mortgage, in these cases, will be borne by the owner whether or not he resides in the house or has custody or not.So, in theory, you could be the mortgage owner but if you don't have custody of your children, you will be paying the mortgage on a property you don't live in.
What Does Extinción de Condominio Mean?
A common term that you may hear when negotiating property rights in divorce disputes, is extincion de condominio. There is no direct translation of this term but a loose translation is that it is a liquidation or dissolution of co-ownership, although it is sometimes also referred to a dissolution of joint property ownership.
An extinción de condominio essentially means liquidating the common ownership of a property. There are generally two ways to do it: through an amicable agreement or through a legal procedure that leads to the forced sale of the property.
One solution with an agreement will involve one party selling their half of the property and being financially compensated by the other. This works well if one party wants to keep the property and the other doesn’t. This would also apply in the situation where the property is sold and the profits are divided equally between both parties.
If there is not an agreement between both parties then things can get messy. An extinción de condominio without a prior agreement usually means a legal dispute and auctioning of the property in front of a judge. Spanish legal experts recommend that it is always better to reach an agreement before it gets to this point. No matter how acrinomous the divorce, it is almost always better to work to reach an agreement as to what will happen with your property independently rather than relying on the opinion of the third party judge.
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