Provisional Remedies in Divorce Cases in Spain

1. General Information

Before the divorce, separation or annulment proceedings finalize, provisional remedies (medidas provisionales) may be adopted by the court in order to maintain the status quo of the parties during the pendency of the previous action of divorce, separation or annulment of marriage. This kind of procedure establishes custody, visitation or child support.

There are two types of remedies that can be taken:

  • Previous remedies (medidas provisionales or provisionalí­simas): The petition for this kind of remedies should be filed before beginning the separation, divorce or annulment procedure. Proof of urgency or necessity will be required.
  • Simultaneous remedies (medidas provisionales or simultáneas): The petition for simultaneous remedies should be filed together with the petition for separation, divorce or annulment of the marriage.

2. Establishing Provisional Remedies

The Judge dealing with the provisional remedies may decide about the following:

a) About your children:

Who will have the custody of children until the divorce, separation or annulment proceedings finalize. Visitation schedule for the non-custodial parent will also be decided, as well as child support.

b) Property settlement:

Provisional remedies will establish the attribution of the use of the family home, which normally will be granted to the married custodial parent. The purpose is to protect the interest of minor children.

c) About family expenses:

Provisional remedies decided by the judge will establish how the spouses will continue to contribute to family expenses. It will also determine the alimony that shall be paid by one of the spouses in favour of the other during the litigation.

The Spanish judge will determine such alimony based on the circumstances of every specific case.

Alimony will be substituted by a compensation allowance once the divorce, separation or annulment procedure finalize.

The Spanish judge may grant the payment of the alimony or compensation allowance by establishing some precautionary measures, e.g. by freezing the salary.

d) About the matrimonial property regime

Not until the sentence for the procedure of separation, divorce, or annulment of marriage is passed, can the matrimonial property regime be extinguished. Notwithstanding the judge may establish any suitable measure to protect the matrimonial property while the court procedure is being held.

3. Effects of Provisional Remedies

The effects of the temporary measures are the following:

  • Once they are brought, the spouses may live separate. Any of the spouses may abandon the family home without committing a crime for abandoning the spouse and children.
  • The power of representation the spouses have given to each other is annulled.

4. Previous Remedies

Petition for previous remedies (medidas provisionales or provisionalí­simas) can be filed before the Spanish courts. The petitioner must indicate the details of the parties, the circumstances of the parties and the specific remedies that need to be taken.

The petitioner should also submit, together with the petition, the marriage certificate, birth certificates of the children and other documents necessary to prove that remedies must be taken.

The parties will be summoned to trial. If they do not reach an agreement before the hearing is held, the judge will decide the remedies that considers suitable, according with the circumstances of the case.

It is advisable to have the assistance of a Spanish Lawyer to file your petition for provisional remedies

The previous remedies will have no future effect if no petition for separation or divorce is filed within 30 days since the judge determine them.

5. Simultaneous Remedies

The petition for simultaneous remedies (medidas simultáneas) can be filed along with the separation, divorce and annulment petition, when no previous measures had been taken before.

If the parties do not reach an agreement when they are summoned to trial, the judge will determine what he considers fit according with the circumstances of the case. The court decision cannot be appealed.

The final sentence or judgment will contain any definitive remedies, thereby terminating any simultaneous ones.

These are only general guidelines and not definitive statements of the law; any questions about the law´s applications to individual cases should be directed to a Spanish lawyer.

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