Case study 1 - family law - divorce - Spain

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In this case study on family law – divorce, Member States were asked to advise parties filing for divorce on litigation costs in the following situations:

Case A – National situation: a couple gets married. Later they separate and agree to a divorce.

Case B – Transnational situation: two nationals from the same Member State (Member State A) get married. The marriage is celebrated in Member State A. After the wedding, the couple moves to live and work in another Member State (Member State B) where they establish their residence. Soon afterwards the couple separates. The wife returns to Member State A while the husband remains in Member State B. The couple agree to divorce. Upon her return to Member State A, the wife immediately files for a divorce before the courts of Member State B.


Costs of proceedings

Costs in Spain

Costs for court, appeals and alternative dispute resolution

Case study

Court

Appeals

Alternative dispute resolution

Initial costs

General costs

Other costs

Initial costs

General costs

Other costs

Is this option available for this type of case?

Costs

Case A

Initial costs.- Deposits to lawyer and legal representative, unless the party is entitled to legal aid under Law 1/1996 on legal aid.

Divorce by mutual consent is one of the cases exempted from the requirement to pay a court fee. In contested divorce proceedings a fee is payable unless the measures requested only concern minors.

These are the general costs of proceedings. These are payable by the party whose claims have all been dismissed (the principle that the losing party bears the costs), unless the case raises serious matters de facto or de jure to be clarified (Article 394(1) of the Civil Procedure Law). If the request is granted or dismissed in part, each party must pay their own costs and half the joint costs.

The principle that the losing party bears the costs (Article 394.2 of the Civil Procedure Law) applies in contested divorce cases.

Experts' fees and expenses incurred in obtaining copies, attestations, notarial instruments and deeds or extracts from public registers.

The same as at first instance.

The same rule applies as at first instance.

The same rule applies as at first instance.

In Spain there is provision for mediation in family law cases, but the Autonomous Communities have jurisdiction in this matter.

In principle, the Autonomous Communities have made provision for mediation free of charge.

Case B

Initial costs.- Deposits to lawyer and legal representative, unless the party is entitled to legal aid under Law 1/1996 on legal aid).

Divorce by mutual consent is one of the cases exempted from the requirement to pay a court fee. In contested divorce proceedings a fee is payable unless the measures requested only concern minors.

These are the general costs of proceedings In contested divorce proceedings, these are payable by the party whose claims have all been dismissed (Article 394(1) of the Civil Procedure Law).

Offers of evidence, drafting of the agreement governing the termination of the marriage.

Applicants must make a prior deposit, unless they are entitled to legal aid.

The same rule applies as at first instance.

The same rule applies as at first instance.

In Spain there is provision for mediation in family law cases, but the Autonomous Communities have jurisdiction in this matter.

Those paid to the professionals used in the process [Translator's note: missing text at end]

Costs of lawyers, administrators and experts

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Lawyers

Administrators.

Experts

Is representation compulsory?

Costs

Is representation compulsory?

Pre-judgement costs

Post-judgement costs

Is use compulsory?

Costs

Case A

They must be assisted by a lawyer and represented by a legal representative (Article 750 of the Civil Procedure Law)

An advance must be paid on fees for a lawyer and legal representative. In contested divorce proceedings post-judgment costs in respect of the losing party.

Does not represent the parties

None

None

Owing to the nature of this procedure, they are not generally used.

None

Case B

They must be assisted by a lawyer and represented by a legal representative (Article 75 of the Civil Procedure Law)

An advance must be paid on fees for a lawyer and legal representative. In contested divorce proceedings post-judgment costs in respect of the losing party.

Does not represent the parties

None

None

Owing to the nature of this procedure, they are not generally used.

None

Costs of witnesses, deposit or guarantee and other costs.

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Witness compensation

Deposit

Other costs

Are witnesses compensated?

Costs

Does this exist? When and how is it used?

Costs

Description

Costs

Case A

Witnesses are entitled to claim for loss or harm incurred in attending hearings from the party that has called them (Article 375(1) of the Civil Procedure Law)

Part of these is included in the costs paid

No prior deposit is required

None

Extracts from civil status records, marriage certificates or certificates proving the existence of children, where relevant for their claim to entitlement (Article 777(2) of the Civil Procedure Law)

As applicable

Case B

Witnesses are entitled to claim compensation from the party that has called them for any losses incurred as a result of attending hearings (Article 375(1) of the Civil Procedure Law)

Part of these is included in the costs

No prior deposit is required

None

Extracts from civil status records, marriage certificates or certificates proving the existence of children, where relevant for their claim to entitlement (Article 777(2) of the Civil Procedure Law)

As applicable

Costs of legal aid and other reimbursements

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Legal aid

Reimbursements

When and under what conditions is it applicable?

When is the support total?

Conditions:

Can the winning party obtain reimbursement of litigation costs?

Case A

To those who can provide evidence of insufficient financial resources for litigation (including fees of legal representative)

Parties will be deemed to have insufficient resources when they can provide evidence that all the components of their annual resources and revenue, calculated by family unit, do not exceed twice the Public Income Indicator with Multiple Effects (IPREM) applicable at the time of application.

This depends on the agreement, if any, reached with their lawyer.

Case B

To those who can provide evidence of insufficient financial resources for litigation (including fees of legal representative)

Parties will be deemed to have insufficient resources when they can provide evidence that all the components of their annual resources and revenue, calculated by family unit, do not exceed twice the Public Income Indicator with Multiple Effects (IPREM) applicable at the time of application.

This depends on the agreement, if any, reached with their lawyer.

Costs of interpretation and translation

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Translation

Interpretation

When and under what conditions is it applicable?

What are the approximate costs?

When and under what conditions is it necessary?

What are the approximate costs?

Case A

Case B

All the foreign public or private documents necessary under the legal conditions established

(translated by officially recognised sworn translator)

Translators set their own rates.

Interpreters for the proceedings, as necessary.

Interpreters set their own rates.


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Last update: 07/06/2019