Family lawyers in Villanueva de la Cañada
Custody and contact arrangements, child maintenance, enforcement when the other parent defaults, the break-up of unmarried couples and variation of existing orders.
Family law deals with what is left after a break-up, and with what happens when there was no marriage. These are matters that reopen as the years pass: children grow up, incomes change, somebody moves away. Our approach is the same as in divorce: agreement wherever it can be reached, proceedings when there is no other way. With one qualification — in matters affecting children, not even the parents’ agreement binds the court: the best interests of the child prevail, and the convenio regulador (the settlement agreement setting out the arrangements) has to be capable of approval.
If you are used to English law, start here. In Spain there is no such thing as a private separation agreement that works by itself, and nothing is settled by signing a document at the kitchen table. Whatever the parents agree has to be put into a convenio regulador and approved — by a court, or before a notary in the limited cases where that is open — before it binds anyone. An arrangement that has not been approved is, in practice, an arrangement that cannot be enforced.
Custody and contact arrangements
Shared custody (guarda y custodia compartida) is, on the case law of the Tribunal Supremo, the Supreme Court, the regime that should be regarded as normal and indeed desirable where both parents are suitable. It is not a prize, nor a division of time into exact halves: it is a model of organisation that calls for homes close to one another, genuine availability and a minimum capacity for the parents to communicate. Where it is not workable, sole custody is ordered, with a régimen de estancias — the timetable of stays with the other parent — in favour of the other. In either case what matters is that the calendar is closed in writing: handovers and collections, who takes and who brings back, school holidays, long weekends and birthdays. Today’s ambiguity is the lawsuit two years from now.
Custody is not the same thing as patria potestad, parental responsibility: that is shared by both parents as a rule, whoever the children live with, and it is what gives each parent a say in schooling, health and where the child lives.
Child maintenance and extraordinary expenses
Maintenance is calculated by reference to the children’s needs and the means of the parent paying it (art. 146 CC, the Civil Code). There is no binding statutory table, although the CGPJ (the General Council of the Judiciary) publishes indicative tables which the courts use as a reference point. The real battleground is not the maintenance figure but the extraordinary expenses. It is worth setting down in the convenio regulador:
- What counts as ordinary and what as extraordinary — school materials and the usual after-school activities are generally ordinary; orthodontic treatment or a pair of glasses, extraordinary.
- What percentage each parent pays.
- That prior agreement in writing is required before the expense is incurred, save in an emergency.
Maintenance for children who are of full age, still living at home and not financially independent, does not come to an end automatically when they turn 18 (art. 93 CC).
When the other parent defaults
A family judgment is enforceable. If the other parent does not pay the maintenance or does not comply with the contact arrangements, you do not have to begin again from scratch:
- Unpaid maintenance: enforcement of the judgment is applied for, with attachment of wages, bank accounts or tax refunds. Persistent non-payment may also carry criminal consequences (art. 227 CP, the Criminal Code).
- Breach of the contact arrangements: enforcement of the judgment, with a formal warning and coercive fines, and in persistent cases a review of the arrangements.
Do not let breaches pass «so as not to make the relationship worse»: prolonged tolerance is later used as an argument that the arrangements were no longer being applied.
Unmarried couples: separating without a marriage
There is no divorce because there was no marriage, but the same things still have to be resolved: custody, maintenance, use of the home and, where applicable, the division of what was bought jointly. As regards the children, the rules are the same as on a divorce and the matter proceeds as a claim for medidas paterno-filiales — orders on parentage and children. As regards property, the rule is different: there is no sociedad de gananciales, so each asset belongs to whoever is registered as its owner unless the contrary is proved.
What the sociedad de gananciales is, and why it matters here. It is the default matrimonial property regime in most of Spain, Madrid included: once a couple marry, everything either of them earns during the marriage belongs to both of them in equal halves, regardless of which of them brought it in or whose name it is in. Only what each spouse owned beforehand, or receives by gift or inheritance, stays their own. That regime applies to married couples and to nobody else: an unmarried couple of thirty years’ standing has none of it.
If you bought a property together and there is no agreement, the route is the division of jointly owned property, which we deal with under civil law.
Variation of existing orders
Measures agreed or imposed can be varied when the circumstances taken into account change in a way that is substantial and lasting: loss of a job, a change of home, a new situation for the children, the birth of other children. A temporary dip in income is not enough, and simply stopping payment of your own accord changes nothing: it creates a debt that is enforced with interest. If your situation has changed, what you have to do is apply for a variation, not stop complying.
Common questions in family law
Is shared custody always ordered?
The Tribunal Supremo treats it as the normal and desirable arrangement where both parents are suitable, but it is not automatic. The court weighs how close the two homes are, the parents’ real working hours, how involved each was in caring for the children beforehand, and their capacity to communicate without passing the conflict on to the children.
The decision is always taken in the child’s best interests, not as an even division between the adults.
Until when does child maintenance have to be paid?
It does not end when the children turn 18. It continues for as long as the child lives in the family home and is not financially independent (art. 93 CC), subject to the limit that the situation must not be prolonged by the child’s own lack of will.
Ending it has to be applied for: that is not automatic either.
My former partner is not paying. What can I do?
Apply for enforcement of the judgment. Wages, bank accounts and tax refunds can be attached, and the sums owed carry interest.
Where non-payment is persistent — two consecutive months or four non-consecutive ones — it may also amount to the offence of abandonment of the family (art. 227 CP).
Can I move to another city with my child?
Not unilaterally if you share patria potestad, parental responsibility. A change in the child’s home that alters the contact arrangements requires the other parent’s agreement or the authorisation of the court.
Doing it on your own initiative is one of the decisions that most damages your position later in proceedings to vary the arrangements.
We lived together without marrying. Am I entitled to anything?
As regards the children, exactly the same rights and duties as in a marriage. As regards property, no: there is no sociedad de gananciales, and each asset belongs to whoever is registered as its owner unless the contrary is proved.
You can claim back what you contributed over and above your share to the other’s assets, and a home bought jointly is resolved through the division of jointly owned property.
Tell us about your case
Bring the judgment or the convenio regulador if there is one already, and a rough statement of income and of what the children cost. With that we will tell you whether your situation fits a variation, an enforcement, or neither of the two. We study every case before taking it on, and we tell you frankly whether it has any prospect of success.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)