How is ownership of property decided when divorcing with children?

Divorces are proceedings in which special attention is paid to what will happen to all assets that the spouses had in common. And, if the couple share children, with whom and where they will live.

In Spain these questions are answered by the requested type of child custody and the purchasing power of the parents.

In the case of sole custody and in relation to real estate, if the house in which the couple lived was acquired by one of the spouses before the marriage, regardless of the economic regime, the property will remain theirs. However, if there are children in common, there is the possibility that, although the property remains the property owner’s, the right to use the property may be granted to the person who has the greater legal interest in the property and has custody of the children.

In cases of shared custody and guardianship of minors or in cases where there are no children, the use of the home can also be granted, albeit for a certain period of time, in favour of the spouse with less purchasing power.

Planning for a hypothetical divorce with prenuptial agreements

Planning a wedding and the consequences of a possible divorce is not the most common thing to do. However, it is certainly the most advisable thing to do. And it can avoid many problems that arise during divorce proceedings. It is therefore advisable that, before the marriage, the future spouses agree on the consequences of a hypothetical divorce.

The best way to regulate the consequences of divorce is to conclude a marriage contract in a public deed. In this deed, the parties may stipulate, modify or replace the financial regime of their marriage. They may also regulate the consequences of their separation. These agreements, however, must always respect the law, good customs and the equality of rights between the spouses.

It is true that in Spain, marital contracts are not common. Therefore, in divorce proceedings, the matrimonial property regime applicable to each case must be taken into account, which will influence the financial consequences of the divorce drastically.

In the case of divorce with children of the marriage, if these are minors, what has been granted in the marital contracts must be validated by the judicial authority, because the interests of the minor will always prevail over what the parents have agreed in the marital contracts.

However, those marital contracts that regulate the property consequences of the break-up will be fully effective and valid. In this case, the spouses may provide for the division of property at the time of divorce.

Should you require any assistance or legal counsel concerning properties, purchases and sales on the island of Ibiza, please contact us at your convenience at or by phone on the numbers listed on our contact page.


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