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As a qualified Spanish lawyer and English solicitor specialising in family law, I often advise Spanish-speaking clients who live in England and Wales or are planning to move here. One of the most frequent areas of concern is how the financial aspects of a marriage would be handled under English law in the event of a divorce, particularly when compared to the legal framework in Spain or any other country with a civil law system.
In this article, I answer some common questions to help couples better understand how the division of assets works in England and Wales, and what they can do to protect their interests.
1. How does the division of assets work in a divorce in England and Wales?
In England and Wales, getting married does not automatically create a “financial framework” or what we know as a “matrimonial property regime” between spouses. In general terms, each spouse will retain control over their assets and finances during the marriage.
However, upon divorce, the legal landscape changes considerably. The courts operate under a principle of judicial discretion, meaning that a judge has significant flexibility to decide how assets should be divided, based on the specific circumstances of the case. There are factors established by law that must be taken into consideration together with legal principles established in case law, but there are no rigid formulas.
It is also essential to understand that obtaining an order for divorce alone does not put an end to financial claims between spouses. To fully finalise the financial relationship and the potential financial claims arising from the breakdown of the marriage, spouses should obtain a financial order, even if there are no assets to divide.
2. How does this compare with the Spanish system of matrimonial property regimes?
The systems are fundamentally different.
In Spain (as in most of continental Europe), couples are subject to a matrimonial property regime. There is usually one that applies by default in the event that the parties do not explicitly chose a different one either before or during the marriage.
In contrast, in England and Wales the concept of matrimonial property regimes does not exist. There is no legal concept of “community” or “separation” of assets by default. Instead, English courts distinguish between “matrimonial property” (usually assets acquired during the marriage) and “non-matrimonial property” (such as inheritance or pre-marital assets), but even these distinctions can be flexible depending on the case.
3. What does this mean for Spanish couples divorcing in England and Wales?
The lack of a predefined property regime means there is more uncertainty. Even if one spouse bought a property in their sole name, the court could still decide that those assets should be shared if it is considered fair to do so in the circumstances.
This unpredictability often comes as a surprise to those used to the Spanish system, where the legal framework provides more clarity from the start and in some way higher financial protection.
That is why we strongly recommend obtaining legal advice if you are relocating to England and Wales and consider entering into a prenuptial or postnuptial agreement, especially for international couples who are used to having a matrimonial property regime in their country of origin or those with significant assets.
4. What factors will an English judge consider when dividing assets?
Judges follow a list of factors set out in law, including:
- The needs of any children (which are the first priority);
- The length of the marriage;
- The age and health of both parties;
- Each person’s earning capacity and financial needs;
- Contributions to the marriage (both financial and non-financial, such as childcare or homemaking)
The goal is to achieve a fair outcome on the basis of the circumstances of the case. The court would aim to ensure that any outcome meets the parties’ housing and income needs, which in principle should be assessed in line with the standard of living enjoyed during the marriage.
5. Can a judge order the division of a property even if it’s only in one spouse’s name?
Yes, absolutely. Even if a home is legally owned by just one spouse, regardless of whether it was acquired before or during the marriage, the court can order that the property be sold and the proceeds of sale distributed between both spouses, or that legal ownership is transferred to the other spouse.
6. How do prenuptial/postnuptial agreements in England and Wales differ from marriage contracts in Spain?
In Spain, marriage contracts (capitulaciones matrimoniales) by which the parties chose the matrimonial property regime applicable to their marriage are legally binding contracts with legal effects and is extremely difficult to challenge their validity and applicability. Judges are bound by the chosen regime, meaning that if an asset is considered separate property it will not be shared with the other spouse in a divorce.
In England and Wales, prenuptial and postnuptial agreements are not automatically legally binding to the Judge. They are treated as one important factor the court will have to consider when making a decisions, and the starting point is that these agreements should be upheld unless it would be unfair to do so. Therefore, the judge retains judicial discretion. The judge will consider whether:
- Each party understood the implications of the agreement;
- The agreement was freely entered into, without pressure, coercion or undue influence;
- It is fair to hold the parties to the agreement in the circumstances.
To maximise the chances of the agreement being respected, it’s essential that:
- Both parties receive independent legal advice.
- There is full financial transparency, by way of financial disclosure.
- In the event of a prenuptial agreement, it is signed well in advance of the wedding (ideally at least 28 days before).
- The terms are fair and reasonable.
8. Will a Spanish marriage contract be recognised in England and Wales?
Not automatically. A Spanish separation of property regime or marriage contract will not be directly binding in English courts. However, the court can consider it as a relevant factor, and will take into account the above considerations.
To increase legal certainty, couples moving to England and Wales should consider adapting their Spanish marriage contract into a postnuptial agreement under English law.
9. How can Spanish couples protect their assets in England and Wales?
There are several steps couples can take:
- Before marriage: Consider a prenuptial agreement.
- After marriage: A postnuptial agreement can provide clarity and predictability, even if a Spanish separation of property regime already applies.
- Keep accurate financial records and clarify ownership of assets.
- Most importantly, seek advice from a lawyer familiar with both Spanish and English law. This helps ensure your planning is effective under both legal systems.
Many couples wrongly assume that if an asset is in one spouse’s name or it was acquired before the marriage or inherited, it cannot be divided in a divorce. In England and Wales, that is not necessarily the case.
10. What advice would you give to couples married or planning to marry in England and Wales?
- Understand how the English system works, it’s very different from the Spanish model.
- Don’t assume that marriage automatically protects or separates assets.
- Have open conversations with your partner about finances.
- And finally, consult a specialist lawyer, before or after marriage, to ensure your interests are protected.
Final thoughts
Understanding the differences between the Spanish and English legal systems is crucial for couples navigating marriage or divorce in England and Wales. With the right legal advice and proper planning, it is possible to reduce uncertainty and protect your financial future.
If you are a Spanish-speaking individual or couple living in England and Wales and need guidance on family law matters, do not hesitate to reach out for advice tailored to your unique circumstances.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.