What Should You Know and Do When the Bond Is Broken in Family-Based Authorisations?
Guide and practical information on what to do with your residence permit in Spain following a rupture of family ties.
4 mins
Today we will talk about a topic that very often causes a headache and is of great concern to foreigners who have in the past obtained a residence permit linked to a family member who is a citizen of the UE/EEA/Switzerland, including Spaniards.
We will focus above all on what happens when the matrimonial bond or de facto/stable partnership (registered or not) is broken, which in the 21st century is a very common scenario.
🚨 The Real Problem: Breaking the Bond and Doing Nothing
The bond is broken and the foreign citizen does not lift a finger. Whether out of fear, lack of information, not wanting to face the issue, or simply because their physical card is still valid. Waiting until the card expires to try and take action can be an irreparable mistake.
Therefore, we want to shed light on this issue. Our objective is for the foreign citizen to have all the cards on the table, to know exactly what to do, how to do it, and thus be able to make the most appropriate decision in good time.
🛂 Most Common Family Authorisations and Their Regulation
Historically, the most typical case was for the family member to be covered under a Union Citizen Family Member Card. Until May 2025, any family member of a European citizen (including Spaniards) could only access residence through this route, regulated by Royal Decree 240/2007.
However, following the reform of the new Immigration Regulations (in force since May 2025), a new temporary residence Authorisation for family members of persons with Spanish nationality came into play (regulated in articles 93 et seq. of RD 1155/2024).
Both options have very different legal regimes. The Union card is governed by European regulations, that is, the community regime, while the authorisation for a family member of a Spaniard is governed by national regulations, that is, the general regime. For this reason, the grounds for keeping your papers in either case are similar, but the procedure is different.
🛡️ Route 1: Maintaining Your Residence (Own Right or Independent Residence)
📝 The Legal Note: An Inherent Right or One You Must Apply For?
The difference between the two regulations is clearly reflected in the official procedures. In the case of the EU citizen family member card (community regime), the right is considered already acquired. You use form EX-19, marking "Maintenance on a personal basis"; you simply communicate your situation to the Administration and keep your same card (TIE).
However, in the case of the Temporary residence authorisation for a family member of a Spanish national (general regime), you must use form EX-24 to apply for an "Independent residence". In this case, you are applying for a new permit that the Immigration Office must formally assess and approve.
This route allows you to retain your right to reside in Spain until your current card expires.
🚫 Beware of the Exceptions! Not All Family Members Are Entitled to This Route
Family Member of a Spanish Citizen (general regime): The law explicitly excludes stable (unregistered) partners and extended family. That is, family members covered by letters c) and i) of article 94 of Regulation 1155/2024 are excluded.
Family Member of an EU Citizen (community regime): European regulations do not contemplate direct maintenance for family members covered by the famous article 2 bis of RD 240/2007 (unregistered de facto partners and extended family). By omitting them in Article 9, the Immigration Office understands that they lose the right by default.
In both cases, these people must go directly to Route 2, which we will explain later.
If your case is not among the exceptions just mentioned, the next step is to act before the Immigration Office. You can communicate the maintenance of your right (if you are an EU family member) or apply for independent residence (if you are a family member of a Spaniard) if you find yourself in any of these situations:
Death of the Spanish/EU citizen, provided that the foreigner has resided in Spain before the death.
Departure of the citizen from Spain, if the European/Spaniard moves abroad, their children or the foreign parent who has custody may keep the card, provided that the children live in Spain and are in school.
Divorce, annulment or cancellation of the registered partnership, if the foreigner meets at least ONE of the following requirements, they will keep their residence:
3-year rule: That the marriage or partnership has lasted at least 3 years (and that at least 1 year has been spent in Spain) before the start of the judicial or cancellation process.
Custody: Having been granted custody of the children in common.
Access rights: Having the recognised right of access to the minor child residing in Spain.
Victims, these are cases in which the circumstances vary slightly depending on the type of authorisation you hold:
Family member of a Spaniard (RD 1155/2024): Having been a victim of gender violence, sexual violence, violence in the family environment, human trafficking (by the Spanish family member) or family abandonment.
Family member of an EU citizen (RD 240/2007): Having been a victim of gender violence or having been subjected to human trafficking by their own spouse or partner during the marriage or registered union. In this regime, it is explicitly detailed that it can be proven provisionally if the judicial process is open, or definitively by means of a judicial ruling.
💡 Traam's Practical Warning
Be careful with the historical census (padrón). The immigration office meticulously reviews changes in the census, beyond the documentation proving the annulment, divorce, separation or cancellation of the de facto partnership, to determine the exact moment when the actual cessation of cohabitation occurred.
🔄 Route 2: Modification
❌ What Happens If You Do Not Meet the Above Requirements?
If your marriage lasted less than 3 years, there are no children in common, or you are in the excluded groups, you must go through this second route.
The system gives you a second chance. When it is not possible to maintain the authorisation on a personal basis, you must apply for a modification of your authorisation to an ordinary residence permit (Art. 191.8 of Regulation 1155/2024).
The possible modifications are:
To a residence and work permit as an employee.
To a residence and work permit as a self-employed person.
To a non-lucrative residence permit.
To a residence permit with work exemption.
⏱️ Pay Attention to the Deadlines!
Time is against you and the clock starts ticking from the moment the family bond is broken. You have a period of 3 months to apply for this modification, meeting the required employment conditions, but it works slightly differently depending on your card:
Family member of an EU citizen (community regime): You have exactly 3 months from the breakdown of the bond to submit the modification.
Family member of a Spaniard (general regime): You also have 3 months from the breakdown to modify directly. However, this regime offers you a "safety net": if you try to apply for independent residence (Route 1) and it is refused, you do not lose the opportunity. The law opens a new period of 3 months starting from the day you receive that refusal so that you can submit your modification.
📊 Comparison Table
Comparison criterion | EU citizen family member card (community regime) | Authorisation for a family member of a Spanish citizen (general regime) |
|---|---|---|
Applicable regulations | Maintenance of the right: Royal Decree 240/2007 (Art. 9). Modification to another authorisation: Royal Decree 1155/2024 (Art. 191.8). | Independent residence: Royal Decree 1155/2024 (Art. 98, 99). Modification to another authorisation: Royal Decree 1155/2024 (Art. 191.8). |
Legal concept | 1. "Maintenance of the right on a personal basis": Declarative right that you already have and communicate (EX-19). 2. "Modification to another type of authorisation": if you do not meet the above requirements. | 1. "Independent Residence": New permit that you formally apply for to be assessed (EX-24). 2. "Modification to another type of authorisation": if you do not meet the requirements or it is refused. |
Family members excluded from applying for maintenance or independent residence | Art. 9 omits the extended family and unregistered partners (covered in Art. 2 bis). In practice, the Immigration Office understands that they lose the right by default. | Explicit exclusion by law: family members under sections c) and i) of Art. 94 (unregistered stable partners and "other family members") cannot apply for it. |
Legal deadlines for action | Maintenance: Obligation to communicate within 1 month from the change of marital status (divorce, cancellation...), providing proof of compliance with requirements. Modification (if you do not comply): 3 months counted exclusively from the moment of the legal breakdown or cessation of cohabitation. | Independent residence: Maximum period of 6 months from the triggering event (divorce, death...) to formally apply for it. Modification (if you do not comply): 3 months from the breakdown, or 3 months from the date your application for Independent Residence is refused. |
Consequence of not taking action | You lose the right of residence, you may fall into an irregular situation, and they may not allow you to renew or apply for permanent or long-term residence. | You lose the right of residence, you may fall into an irregular situation, and they may not allow you to renew or apply for long-term residence. |
The transition at 5 years | You apply for the permanent residence card for a family member of an EU citizen (community regime) or long-term residence (general regime). You should also know that you have the possibility of applying for nationality by residence, if you meet the other requirements for your case. | You apply for the long-term residence authorisation (general regime). You should also know that you have the possibility of applying for nationality by residence, if you meet the other requirements for your case. |
🚋 Our Services at Traam
At Traam we are specialists in immigration law and we accompany you at every stage of your immigration process: from the initial application for your residence to modifications due to changes in your personal situation and subsequent renewals (such as Long-Term Residence or Nationality).
If you need to manage your current situation or are interested in applying for your residence for the first time, we invite you to consult the sections of our website where we explain each procedure in detail:
Do you have doubts about which one suits you best? In principle, if you are a family member of a Spanish citizen, current law allows you to apply for both. However, the trend of the legislator and in practice at the Immigration Office is that, gradually, the Community Card will be reserved exclusively for family members of EU/EEA/Swiss citizens (excluding Spain), leaving the new authorisation of the general regime for family members of Spaniards.
As each option has its own pros and cons, we have prepared a specific article where we explain what, how and when you should apply for one or the other depending on your personal circumstances. We encourage you to read our “Comparative Guide: Immigration Authorisations Based on Family Ties”.
And remember: if your family bond has been broken, time is running against you. Do not wait for your card to expire. Contact us and we will help you protect your right to reside and work in Spain.