Family Law
Whether they are judicial, extrajudicial or negotiation proceedings, Family Law matters usually involve the most important aspects of any person’s life: children, affections, the family home, family, relationships, and assets.
Hence the importance of having professionals equipped with solid theoretical and procedural knowledge in Family Law, but also with the special sensitivity required; lawyers who accompany people during the emotional transit in such personal and delicate matters.
As experts in Family Law, we cannot and should not guarantee results, but we can define strategies foreseeing possible scenarios, providing the people for and with whom we work hand in hand, the necessary information so that their decision making process is the best possible. As specialists we understand the conflicts, consequences and needs that arise after a breakup. Even between well-matched people, the emotional factor is always present in family matters.
Therefore, our main objective is always to look after the interests of the children and the families, prioritizing amicable agreements in order to maintain, as far as possible, the family ties.
FAMILY LAW
We advise nationals and foreigners on the necessary formalities to get married or to register as a domestic partner in the corresponding registry.
Before getting married, it is important to know the advantages and disadvantages of the main matrimonial property regimes that exist in the general legal system. Choosing between the community of acquisitions, the participation regime or the separation of property regime has important consequences for the future marriage.
However, unlike other countries, in Spain it is possible to change the matrimonial property regime after the celebration of the marriage. To do so, it is only necessary to execute before a notary some marriage contract (capitulaciones) in which the desired regime is adopted. We advise our clients on which regime best suits their family and economic circumstances. We also advise on the possibilities and limits of premarital agreements in the Spanish legal system.
We are specialists in mediation and negotiation; we try to solve conflicts with agreements, avoiding, whenever possible, legal proceedings.
At Sainz & van Kesteren we advise people on how to complete their separation or divorce proceedings; also to request parental measures in the case of couples with minor children who are not married.
After the cessation of cohabitation or de facto separation, many couples consider initiating their separation or divorce. When people reach an agreement it is necessary to express it in a legal document called Regulatory Agreement that must be presented in the Courts for its judicial approval. This Agreement contains the basic rules that will regulate the family relations in the future, after the separation or divorce. By law, this agreement must contain a clear definition of very specific issues such as the custody and guardianship of the minor children (shared or exclusive), the visitation regime, the alimony, the attribution of the use of the family home, the liquidation of the community property or the common assets (joint ownership), among the most relevant ones.
At Sainz & van Kesteren we consider that the Regulatory Agreement is one of the most important documents that a person signs throughout his or her life, one of the few that regulates the future of those involved in the long term. That is why we draft each Regulatory Agreement in a handcrafted way, with care and attention to every detail, with all the necessary tools to create a “tailor-made suit”; because every family, every couple, has unique and different circumstances.
When it is not possible to reach agreements that conclude with mutual agreement procedures, it is possible to request that the judge decide for the parties on the provisional and/or definitive measures that will govern family relations after a separation or divorce.
At Sainz y van Kesteren, in addition to designing legal and procedural strategies based on solid knowledge and our extensive professional experience, we accompany our clients during the complex moments generated by the judicial dynamics.
Provided that there are no minor children and the parties have reached an agreement on the terms of the divorce and the liquidation of the community property, the divorce can be formalized before a notary by granting a private document.
Dedication to the home and family may entitle you to a compensatory pension and/or compensation in the event of divorce.
The liquidation of the community property consists of dividing in half the patrimony generated by the spouses during the marriage and until the end of the community property.
On the other hand, the extinction of the condominium (also called proindiviso) consists of expressing the will of the owners not to continue sharing the property of certain goods. The usual formulas to extinguish a condominium are the adjudication of the property to one of the co-owners by means of an economic compensation, or the sale to a third party.
Even when there is already a divorce sentence with the measures that are going to regulate the family relations, important changes can take place in the life of the people. When this change of circumstances really takes place, it is possible to request judicially the modification of the measures contained in a sentence with the purpose of adapting them to the new circumstances of the family.
In the event of non-compliance with any of the measures established in a court decision (non-payment of alimony and/or compensatory alimony, non-compliance with the visiting arrangements, etc.), the other party may request judicial enforcement from the party that has not complied with its obligations by filing an enforcement action.
As a rule, parental authority is shared between both parents. This means that important decisions concerning the children must be taken by mutual agreement between the parents, as provided for in Article 156 of the Civil Code.
However, when one of the parents refuses to take an important decision affecting the minor (change of school, psychological therapy, etc.), the other parent can apply to the judge for judicial authorization to allow him/her to take such a decision considering the best interests of the minor children.
Although it is little known, grandparents also have the right to enjoy their grandchildren through a visitation regime; in case of disagreement between the parents about the visits between grandchildren and grandparents, the latter can request a visitation regime that allows them to share time with them.
The legal system provides legal mechanisms for parents to request the judge to order necessary or appropriate measures to remove a minor from any danger, or to prevent harm to the child in their family environment or to third parties (suspension of visiting arrangements, prohibition of departure from the national territory, removal of the child by one of the parents, etc.). These mechanisms are regulated in article 158 of the Civil Code.
This is a procedure established in Canon Law by means of which those who have contracted a marriage in Church can request the declaration of nullity of their marriage based on one of the causes or chapters as provided for in the Code of Canon Law (CIC). It is important to keep in mind that in order to declare the nullity of a canonical marriage there must be previous defects or causes of nullity and in any case present at the moment of giving the “I do” or giving consent.
As lawyers at Sainz y van Kesteren we advise our clients on the different chapters of nullity in the current canonical legislation and the rest of the requirements and evidence necessary to initiate a procedure of these characteristics.
This is a judicial action through which the recognition of the filial relationship between a parent and his or her child is requested; an issue that can be very important for children who have not been officially recognized. When this type of action is declared admissible, the person requesting it may have all rights derived from filiation so declared.
Adoption is not only a way of having children, but also a form of child protection through the incorporation into the family of boys and girls who, due to different circumstances, cannot remain in their family of origin.
Likewise, at Sainz & van Kesteren we advise people on the procedures to follow in order to adopt children of legal age, children of couples, etc.
This is an assisted reproduction technique that takes place when a single person, a married couple or a couple wishes to have a child and for this purpose arranges with a woman the gestation of their future child or children through a series of agreements in which issues such as the renunciation of filiation by the gestational mother or the payment of medical expenses generated during the process, pregnancy, delivery and postpartum are defined in detail.
Although this technique is expressly prohibited by Spanish law, it is widely used in countries such as Canada, the United States, Ukraine or Georgia, and pregnancies carried out in these or other countries may have legal consequences provided for in Spanish law, such as paternity claims.
At Saiz & van Kesteren we advise our clients on the possibilities of surrogacy in countries such as the United States.
During the month of June 2021, two legal reforms of capital importance for persons with disabilities and minors were approved. These are Law 8/2021 of June 2 reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity: and Organic Law 8/2021 of June 4 Organic Law 8/2021, of June 4 on the comprehensive protection of children and adolescents against violence.
Both laws repeal and modify norms of the Civil Code and the Civil and Criminal Procedure Law, among others, such as the Law for the Protection of the Assets of Persons with Disabilities, the Law of Notaries, and the Law of the Civil Registry.
In the case of Law 8/2021, it is a regulation promoted by the associative sector with the aim of adapting the current legislation to the requirements of the International Convention on the Rights of Persons with Disabilities, signed in New York on December 13, 2006, and ratified by Spain.
The great significance of the reform implies a change of approach, going from a system of substitution in decision making to a system of support based on respect for human rights, the will, and preferences of the person with disabilities. That is to say, before, the starting point was incapacity, and after the reform, the starting point is capacity, providing support measures for the full exercise of legal capacity under equal conditions.
Therefore, concepts such as incapacitation or affected capacity, replacing specific measures such as friendly accompaniment, technical assistance in the communication of declarations of will, the breaking down of architectural barriers, advice, or even decision making delegated by the person with disabilities, thus reserving representation in decision making for situations where support cannot be provided in any other way.
Among the most important mechanisms provided for by the reform are the preference for voluntary measures, preventive powers and mandates, self-guardianship and, of course, care guardianship, which will only be representative in exceptional cases. This replaces guardianship as a mechanism of representation for persons with disabilities.
With the recent reform of the Civil legislation on disability, as well as the protection of children and adolescents, there has been a paradigm shift in terms of the exercise of the capacity to act, since it has gone from incapacity as a rule, to capacity as a rule. This has important practical consequences, since the old processes of incapacitation and guardianship cease to exist and are replaced by procedures for the provision of support and guardianship, in addition to other mechanisms.
The protected estate is a legal mechanism aimed at protecting persons with disabilities that is created by means of a notarial deed. It is a matter of creating an estate without its own legal personality, which is separated from the rest of the patrimonial interests of a person and which, as a result of the creation of the protected estate on certain assets or rights, are immediately and directly linked to the satisfaction of the vital needs of the person with a disability. The creation of protected estates generates some tax advantages and once it is created it is only extinguished by the death of the person with disability or when the person has ceased to have the disability.
The assets and rights that comprise it are isolated from the rest of the personal assets of its owner, being subject to a specific administration and supervision regime.
The constitution of the protected estate requires the execution of a public deed before a notary, as well as an original contribution of assets and rights.
At Sainz & van Kesteren Abogados we advise our clients on disability law, as well as on the creation of protected estates and their tax treatment.
