SPAIN AND PENSION SHARING

In a recent case the Court has accepted that a wife should be able to have her financial claims dealt with in England, although the divorce had originally taken place in Spain.

The wife particularly wanted this because of the difference between the law on pensions in the UK and Spain here, after a long marriage, an equal division of pensions is the norm on a pension sharing basis. Such an arrangement is not possible in Spain.
The Court allowed the wife’s application, but got it wrong entirely on the application of English law in the Spanish Courts. The Judge dealing with the case believed that the Spanish Courts would apply English law and therefore automatically the wife would receive a pension share.
On the basis of recent discussions with an English barrister colleague practicing in the Malaga area of Spain, I can confirm that this is completely untrue. In the first place although the Spanish Courts have to take law into account, many Spanish Judges simply refuse to make an order in respect of pensions.
In the second place, where they do make a pension sharing order, it can be almost impossible to enforce because it does not technically comply with the requirements of UK pension sharing legalisation.
This is an extremely important issue for couples who retire to Spain, where their only assets may well be the property in which they reside and the pension on which both of them live. If upon separation only the capital is divided and the pension remains in the hands of the husband, this can be a complete disaster for the wife.
It is worrying that the English Courts believe the propaganda of the Spanish legal system that they apply our law absolutely. It is difficult to see how they would do that, but in truth as ever it is down to the discretion of the Spanish Judge. As they are not used to any interference with pensions they are unwilling to make pension sharing orders even when an English Judge would probably do so.

The moral of the story is if you want a pension share – apply in England!