Tenerife Solicitors

Family Law & Divorce

Are you currently considering or going through a marriage or relationship break-up?
Many couples relocate to Tenerife in search of a new life together, but fail to appreciate that an international move may prove fatal to the relationship. Research shows that before they relocate, couples tend to focus on external aspects of the move, such as where to live or what they will do for work and as such are often unprepared for the disorientation and isolation that typically accompanies an international move.

Tenerife Solicitors can advise and assist in most areas of family law including divorce, cohabitation, separation, civil-partnerships, pre-nuptial agreements and related issues, including cases involving children.

Tenerife Solicitors realise that these are sensitive issues, so we always try to handle cases in a professional, sympathetic, civilised and positive manner and by providing clear advice and firm action to resolve problems, wherever possible by agreement with your former partner.

Please note that Tenerife Solicitors can only assist with proceedings brought in Courts in England or Wales, whether you intend to issue proceedings or whether you are responding to a petition brought by your former partner.

We shall now consider the rules governing the choice of Court, namely whether to issue in Tenerife or in England/Wales:

Where should I petition for divorce, in England or in Tenerife?

The English Courts will only accept the issue of divorce and/or ancillary (financial) proceedings in the following situations:
  • Both parties are habitually (normally) resident in England or Wales; or
  • Both parties were last jointly and habitually resident in England or Wales and one partner still lives there; or
  • The Respondent (party receiving the petition) is habitually resident in England; or
  • The Petitioner (the party who issues the petition) is not English or Welsh but is habitually resident in England or Wales and has lived there for the past 12 months; or
  • The Petitioner is English or Welsh and is habitually resident in England or Wales or has resided there for the last 6 months; or
  • Both parties are domiciled in England or Wales. (Under English law, Domicile is essentially where an individual considers to be his home country, regardless of where he or she is currently living.)
The Spanish Courts accept issue of proceedings under the same rules, except that ‘domicile’ (under the last option above) is interpreted to be an individual’s actual current place of habitual residence, and not merely where they consider to be their home country.

Regardless of where proceedings are eventually issued, European Regulations state that once proceedings have been correctly started, then the country of the chosen Court then has exclusive jurisdiction (i.e. it is thereafter impossible to transfer proceedings or issue counter-proceedings in a different country).

Clients living in Tenerife who are considering a divorce or separation therefore need to carefully weigh up the pros and cons of legal proceedings in each country. Typically a Court (or forum) will be chosen by one party as the most advantageous to their financial claim, although this choice will usually be less advantageous to the other party. This practice is known as “forum shopping”, and is very common in cases involving parties with substantial wealth or assets.

Issuing in the Tenerife Courts – Which law is Applicable?

In the event that one party is to issue proceedings in Tenerife, the next question will be to determine the law applicable to those legal proceedings.

Whereas the English Courts will only ever apply English law to their proceedings, Spain will apply the law applicable to the nationality of the individuals in question, even where both parties have been living and resident in Tenerife and where one party petitions for divorce in the Spanish Courts.

The case will be dealt with by a Spanish Judge, who will expect the lawyers to provide him with details of the relevant matrimonial laws that apply in England & Wales, following which the Judge will apply those rules. This concept of adopting and applying another country’s laws is an alien concept in England, but is commonplace in Spain.

The starting point of the Spanish Courts is to apply the national law applicable to the shared nationality of both partners at the time of filing the petition. This will cover almost all couples who moved to Tenerife as British Nationals having been formerly resident in England or Wales.

In the absence of a common nationality, the law applicable will be that of the common place of habitual residence of the spouses at the time of issuing proceedings (e.g. Spanish Husband and English wife both still living in Tenerife; hence Spanish law will apply).

In default of either of the above scenarios, where one party has already moved to another country by the time proceedings are commenced in Spain, the Spanish Courts will apply the law applicable to the last common place of habitual residence (e.g. the couple were living together in Tenerife, and one party left the island whilst the other stayed; hence Spanish law would apply).

The above information is provided as an overview of the key legal principles and is NOT intended as definitive legal advice. Clients should always take independent legal advice regarding their specific circumstances.

Tenerife Solicitors are happy to advise and assist clients in choosing the correct forum for legal proceedings. Should our advice be to issue proceedings in the Spanish Courts, we can refer you to a reliable and experienced local Abogado ( Solicitor in Tenerife ) who can assist you with the Spanish legal procedure.

For an informal and confidential chat to discuss your requirements or to arrange an appointment, please call Tenerife Solicitors on 922 717 845 (or on 0871 218 0063 from the U.K) or you can email us at the CONTACT US link above.
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