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Divorce – How it might affect your Spanish Property

Published 24/06/2009

Unfortunately some changes in our lives are not always positive such as a separation or divorce. Certainly this is a complicated situation from a personal point of view, which very often requires all one’s energy to get through. To assist you in the legal procedure you will require professional help from a qualified lawyer, specialising in this aspect of the law.

Initially the divorce agreement (Consent Order) has to be obtained and is generally issued by the court in the country where the marriage was celebrated and registered. However, this document only stipulates what steps have to be taken once the marriage is dissolved. To distribute the marriage assets between the ex-spouses the next step is to actually pass the individual assets to the correct person, as named in the Consent Order.

In case one of the assets is a property located in Spain, owned jointly by the ex-spouses, one share has to be transferred from one ex-spouse to the other in accordance with the court’s decision. This change of ownership is known as an “extinction of co-ownership” and for legal and fiscal implications it has to be distinguished from an ordinary sale or donation.

As in any other kind of transfer of ownership a new Title Deed has to be signed before the Notary Public and this Deed then has to be inscribed in the corresponding Land Registry. The basis for this transaction is the Consent Order which serves as proof before the Notary, the Land Registry and the Tax Authorities to verify that this transaction is an "Extinction of co-ownership" which benefits from certain tax advantages.

The normal procedure can vary slightly if there is already a mortgage on the property or if the person who will eventually have full ownership of the property has to pay a certain amount to the ex-spouse and to raise these funds it is necessary to mortgage the Spanish property.

In both the aforementioned cases the initial step would be to negotiate this situation with the bank and in the second case, once approved, a Mortgage Deed would have to be signed before the Notary Public and registered at the Land Registry.

Ábaco can assist throughout the whole extinction of co-ownership procedure and ensure that the Spanish property becomes registered in the name of the person stipulated in the court decision. Generally there is no need for the two parties involved to travel to Spain if Power of Attorney is granted in favour of our Lawyers and this can be arranged in the home country.

If you require legal advice regarding this matter please contact us and we will arrange for you to speak with one of our Lawyers specialising in this procedure.

María Wiedemann

María Wiedemann

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