Divorce and separation
What is divorce?
Divorce is the dissolution of the marriage by the will of both spouses or of one of them and leaves them in a position to remarry.
Grounds for divorce
Article 86 of the Civil Code states that divorce shall be decreed by a court, regardless of the manner in which the marriage was entered into, at the request of one of the spouses, of both spouses or of one with the consent of the other, when the requirements and circumstances stipulated in Article 81 are met.
Article 81 of the Civil Code precisely regulates the grounds for separation.
What is separation?
Separation is defined as the interruption of conjugal life by agreement of the parties or judicial decision, without the marriage bond being extinguished. Unlike divorce, in a separation there is still a marital bond that binds the parties and prevents them from remarrying. The spouses can only start separate and independent lives.
It is regulated in Articles 81 to 84 of the Civil Code and Articles 90 to 107 of the Civil Code.
Grounds for separation
Article 81 of the Civil Code establishes that separation shall be judicially decreed when there are unemancipated minor children or adult children in respect of whom support measures attributed to their parents have been judicially established, regardless of the form of celebration of the marriage:
(1) At the request of both spouses or of one with the consent of the other, after three months have elapsed since the celebration of the marriage. The application shall be accompanied by a proposal for a regulatory agreement drawn up in accordance with Article 90 of this Code.
2. At the request of only one of the spouses, after three months have elapsed since the celebration of the marriage. This period need not elapse for the filing of the petition when the existence of a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the petitioning spouse or of the children of both spouses or of either of the partners in the marriage is accredited.
What is the difference between divorce and separation?
It is important to understand that divorce dissolves the marriage bond of the parties, which opens up the possibility of remarriage, unlike separation, which does not dissolve the marriage bond.
Types of divorce and separation proceedings
In order to be able to separate or divorce, at least three months must have passed since the marriage was entered into. Both can be obtained in one of two ways:
Mutual agreement procedure:
This is the one by which the spouses, by mutual agreement, and in the face of a marital crisis, decide and adopt measures on personal and patrimonial aspects, relating to the children, the family home and matrimonial burdens.
All these measures are set out in a document called a regulatory agreement.
The minimum content of this agreement is regulated in art. 90 CC and is as follows:
- The parental authority, custody and guardianship of the children.
- The use and enjoyment of the family home
- Determination of the visiting arrangements for the children
- Alimony
- And in the event that it is given, the compensatory pension.
Mutual agreement procedures can be carried out in two ways:
By public deed before a notary:
This method is not possible in the case of unemancipated minor children or disabled children.
The intervention of a practising lawyer is mandatory.
The competent notary shall be the notary of the last common domicile or the domicile or habitual residence of either of the applicants.
Both spouses must go in person, they can go with the drafted agreement, or they can even draw it up at the notary’s office itself, following the available models.
Once there, both spouses must sign the agreement in order to proceed with its formalisation.
On the other hand, in the event that there are children of legal age, they will have to give their consent to those measures that affect them.
An appeal may be made to the competent judge against the notary’s refusal.
By means of a judicial procedure of mutual agreement.
The intervention of a lawyer and solicitor is mandatory.
The territorially competent court in cases of mutual agreement shall be that of the last family domicile.
In this case it is necessary to accompany the regulatory agreement of the divorce or separation lawsuit.
The judge may issue a ruling agreeing with the spouses, or may reject the proposed settlement agreement by means of a reasoned decision.
In the second case, the spouses must submit a new proposal to the judge for his or her approval, if appropriate, within the time limit set by his or her Honour.
Contentious proceedings:
The intervention of a lawyer and solicitor is mandatory.
In this case, a contentious lawsuit must be filed in the competent court, which is the court of the last family domicile. After the lawsuit has been filed and admitted for processing, the defendant spouse has 20 working days to reply to the lawsuit, which must be accompanied by the documents proving the claim.
Once the claim has been answered, the appropriate hearing will be held in order to determine the measures that will be established in the corresponding Judgment, and an appearance for provisional measures may even be held beforehand in the event that provisional measures are necessary prior to the issuing of definitive measures, in order to regulate the situation temporarily.
Transformation of the proceedings:
If the parties agree out of court to divorce by mutual consent or at the request of one of the spouses with the consent of the other, they may, at any time during the contentious proceedings, request that the procedure be changed and everything be regulated in accordance with the provisions of the amicable divorce proceedings.
When does it take effect?
In the case of an amicable agreement, from the signing of the regulatory agreement and, in the case of a contentious divorce, from the moment the Judgment is issued.
What can I do if the other party does not comply with it?
From the moment it becomes effective, it can be enforced by means of an enforcement action.
Given the difficulty that this type of procedure entails both on a technical and emotional level, at Winkels Abogados we guarantee, thanks to our extensive experience and specialisation, good advice in order to protect your interests and to ensure that the process is advantageous in all respects.