Precautionary measures in family proceedings

The break-up of a couple, whether through separation or divorce, is a particularly delicate and complex time. On the one hand, from an emotional point of view. On the other hand, from a legal perspective, especially if there are minor children and shared assets. In this regard, Spanish law offers a mechanism that you should be aware of in order to protect your interests and those of your children: precautionary measures. But what exactly are they? We will explain them to you in detail here.

What are precautionary measures?

Precautionary measures are temporary and provisional court orders that the couple adopts for the purpose of establishing a framework for cohabitation and asset protection while the separation, divorce, or marriage annulment process is finalised. Their primary objective is to prevent any possible delay in the proceedings from causing irreparable harm to either party or their children.

What is the difference between precautionary and provisional measures?

These two concepts are often confused, as both are intended to ensure the welfare of children and partners and cease to have effect once the final separation or divorce decree is issued, but they are not synonymous.

Generally, precautionary measures in this type of proceeding focus on urgency and the protection of spouses and children to avoid harm during the process. For example, if you are facing a contentious divorce and your partner leaves the family home, you can request custody and the payment of provisional maintenance to ensure the welfare of the children.

Provisional measures, on the other hand, are not urgent in nature. In other words, they only seek to regulate the family situation temporarily until a final ruling is issued. It is common, for example, for this formula to regulate child custody, use of the family home and the amount of maintenance.

And what about emergency protective measures?

A protective measure can become an emergency protective measure if one essential requirement is met: the other party is not heard during the proceedings. Generally, when a judge establishes protective or provisional measures, both parties are heard beforehand to substantiate their decision.

In addition, emergency precautionary measures in separation or divorce proceedings can be established even before the proceedings begin, which is especially common in cases of abandonment of the family home or gender-based violence. In such cases, it is considered that there is an immediate danger to the spouse requesting the measures or to the children, requiring urgent protection.

When and how to request precautionary measures

The Civil Procedure Act provides for two moments to request this type of measure in separation or divorce proceedings. Let's take a look at them:

• Before filing the lawsuit: here we would refer to those urgent measures that cannot wait, such as those mentioned in the previous section. In fact, the law provides for the possibility of requesting them initially without the need for a solicitor or advocate for this reason.
• In the lawsuit: they are reflected in the lawsuit itself filed with the court, so they are understood to be requested within the separation or divorce proceedings.

Now, how long do urgent precautionary measures take? Given that they are requested because there is a risk of irreparable harm to the spouse or children, they are adopted immediately. However, once established, you will have a period of 30 working days to file the lawsuit and begin the proceedings, or they will lose their validity.

What are the most common precautionary measures?

This is difficult to determine with any certainty, as each case is unique. However, to give you an idea, one or more of the following are usually requested:

• Visitation and communication arrangements: that is, the schedule according to which the non-custodial parent can spend time with their children.
• Custody and guardianship of minor children: currently, the trend is towards joint custody, but it can be awarded to one parent on a temporary basis.
• Use of the family home: this is usually granted to the spouse who has custody of the children, regardless of who owns the house, as the primary interest is that of the children.
• Maintenance payments: both the amount and the method of payment.
• Contribution to marital expenses: the amount to be paid by the other party to cover common expenses, such as the mortgage or rent and utilities.

In more extreme cases, it is also possible to request a ban on leaving the country without judicial authorisation or even the withdrawal of the other spouse's passport. This is only requested and granted when there is a risk of the children being taken to another country.

What happens if the precautionary measures are not complied with?

All the possible measures referred to above are established by means of a court order and are therefore binding. The aggrieved spouse may therefore demand that they be enforced.

Firstly, it is possible to request the court to enforce the order through civil proceedings by means of an express petition, for example, due to non-payment of maintenance or repeated failure to comply with the visiting arrangements. The judge may take measures to enforce the order, such as the seizure of accounts, wages or assets, or the imposition of coercive fines.

It is also possible to request changes to these provisional measures, such as the custody arrangement. If custody is shared but one of the spouses fails to fulfil their obligations, it can be changed to sole custody.

It is also possible to take criminal action by filing a complaint for family abandonment. Article 227 of the Spanish Criminal Code provides for penalties of between 3 and 12 months' imprisonment and fines of between 6 and 24 months.

Do you still have questions about precautionary measures in separation or divorce proceedings? Then get in touch with us. One of our family lawyers will assist you and explain what you need to do based on your personal circumstances to protect your rights.