Complete guide to getting divorced in Spain: all the steps to follow to start the divorce process quickly and easily. Learn how to manage child custody and division of assets. #Divorce #Family
How do I get divorced? What steps do I have to take to initiate a divorce? Who do I contact to get divorced? How do I divide the property? Who will the children be left with? What documents do I need?
These are some of the most common questions that spouses ask themselves before starting divorce proceedings.
Below, we explain how to get divorced in Spain, avoiding problems and headaches.
Table of contents:
Divorce in Spain
Before addressing the issue of divorce step by step, it should be made clear that Law 15/2005 of 8 July 2005, which amends the Civil Code and the Civil Procedure Act on separation and divorce, abolished the legal grounds for separation and divorce in Spain.
In other words, since 2005 it is not necessary to allege a cause to obtain a divorce.
The only requirement for divorce is that at least three months have passed since the marriage.
1) Divorce by mutual consent or contentious divorce
When it comes to divorce, the first thing to consider is what type of divorce it is: uncontested or contentious.
That is to say, whether or not there will be an agreement between the two parties regarding the divorce and its measures.
Contentious divorce usually involves, in most cases, subjecting parents and children to psychosocial studies, judicial declarations and, in general, an atmosphere of tension and hostility.
It is always preferable to opt for the route of mutual agreement because the regulation of the new situation is born from agreement and not from tension, thus avoiding the odious labels of 'winners' and 'losers' and that one of the parties is left with the feeling of, as soon as possible, requesting a modification of measures.
The most important divorce procedure is to try to reach an amicable divorce agreement with your partner.
Divorce by mutual consent has many advantages over contentious divorce:
The procedure to be followed is quicker and cheaper.
It avoids emotional problems and confrontations between the partners.
The measures adopted in the mutually agreed settlement agreement are easier and more easily complied with.
It is more beneficial and less dramatic for the children, whether they are minors, adults or emancipated.
The measures to be taken will depend on the spouses and will not be left in the hands of a third party (the judge).
But if you cannot agree with your partner, you will have to go through a contentious divorce process that is slower, more costly and emotionally stressful.
2) Choosing the right professionals
In all divorce proceedings, it is essential to contact a good lawyer specialising in family law.
Remember that although divorce is a process, its consequences (payment of pensions, custody, attribution of the use of the family home...) can have very important effects for many years.
Therefore, trying to save costs when dealing with divorce proceedings can end up being much more expensive in the medium and long term than hiring a family specialist from the beginning.
If there are differences in the decisions to be taken regarding divorce or separation, it is not advisable to share a lawyer. The most advisable thing to do is for each of the spouses to seek a specialist lawyer and try to reach an agreement between them. The professionals will bring positions closer together, leaving aside the emotional aspect that normally makes it difficult for the parties to talk to each other.
If an agreement is not possible, despite attempts at negotiation, the parties should go to court; once the legal proceedings have begun, it is always possible to redirect the situation and agree on the terms of the divorce or separation.
Professionals involved in a divorce by mutual consent
If the spouses choose to go to court, they may be assisted by a single lawyer and represented by a single solicitor in the divorce proceedings by mutual consent. However, it is also possible for each of them to be represented by their own lawyer.
If the spouses opt for divorce by mutual consent before a notary, they must be assisted by at least one lawyer. In this case, the intervention of a solicitor is not necessary.
Divorce before a notary is only possible if there are no unemancipated minors or children with legally modified capacity who are dependent on their parents.
Divorce before a notary is a much quicker procedure than through the courts.
It should be noted that in order to resort to this channel, it is a prerequisite that three months have passed since the celebration of the marriage, that there are no minor children or children with a judicially modified capacity, and in the event that there are children of legal age or emancipated minors, they must give their consent before the notary regarding the measures that affect them as they do not have their own income and live in the family home.
Professionals involved in contentious divorces
In this case it is compulsory to go to court.
In contentious divorce proceedings, each of the spouses will be assisted by a lawyer and represented by a solicitor, different from those of the other party.
Family mediation
It is important to mention the figure of the family mediator, as a professional who can also intervene in a divorce situation, which will be discussed later on.
3) Choose the procedure to follow
In an uncontested divorce
As we have said, whichever procedure you choose, you should contact a lawyer specialising in divorce.
If there is mutual agreement between the spouses, the lawyer will draw up the regulatory agreement that will govern the divorce, based on the agreement reached by the spouses.
For the approval of the regulatory agreement you can initiate what is known as an express divorce.
There are two options:
Court proceedings
Once the lawsuit for divorce and the settlement agreement have been drafted by the lawyer, they will be presented to the competent court. As we have indicated above, it will be necessary to grant power of attorney in favour of a solicitor to represent the spouses in the process.
The judge and the public prosecutor, if there are minor children, will ensure that the agreement does not contain agreements contrary to the law or detrimental to those involved (spouses and children). After ratification of the agreement by the parties, the judge will issue a judgment approving the agreement.
If there are no unemancipated minor children or children with legally modified capacity who depend on their parents, the Lawyer of the Administration of Justice will be in charge of the Decree approving the regulatory agreement.
Likewise, the Legal Adviser for the Administration of Justice shall ensure that the agreements are not detrimental to the spouses or to the children of legal age or not emancipated.
If this is the case, the approval of the agreement shall be the responsibility of the competent judge.
Out-of-court procedure
If the spouses do not have minor children who are not emancipated or have legally modified capacity and are dependent on them, they may go to a notary to arrange the divorce.
The lawyer will present the settlement agreement at the notary's office and it will be attached to the divorce deed. The notary will also monitor the spouses' agreements in the divorce settlement agreement.
If the notary considers any agreement to be detrimental to either of the spouses or to the adult children or emancipated minors, he or she will warn the spouses and terminate the file. In this case, it would be up to the judge to approve the settlement agreement.
Family mediation process
If you cannot reach an agreement with your partner, we advise you to go to a mediator before initiating contentious divorce proceedings.
Family mediation is a method of dispute resolution. The spouses can go to this mediation process in order to reach an agreement on the terms of the divorce with the help of the mediator, without the need to go to a judge.
Family mediation is presented as a voluntary, confidential and cooperative process aimed at the search for agreements agreed between the parties, where they will be the protagonists of the process and the ones in charge of working towards consensus, being assisted at all times by a family mediator.
This impartial and neutral professional will be in charge of guiding the process, facilitating communication and generating a climate where the parties can show their vision of the situation, see the conflict from a more collaborative perspective and propose different solutions to the conflicts that arise.
If the mediation is successful, the mediator will draw up a mediation agreement in which the agreements reached in relation to the custody of the children, alimony, compensatory pension, distribution of assets, etc. will be included.
This agreement is morally binding on the parties but cannot be enforced in court in the event of non-compliance. Therefore, once the mediation agreement has been reached, the couple must go to a lawyer specialised in divorce.
The lawyer will transform the mediation agreement into a regulatory agreement.
From this point onwards, you will have to initiate legal proceedings for divorce by mutual agreement or, alternatively, execute a notarial deed of divorce. We refer to the above for the case of mutual agreement.
In a contentious divorce
In the absence of agreement between the spouses, contentious divorce proceedings must be initiated.
The lawsuit shall be filed by one of the spouses alone, who shall be represented by a solicitor and assisted by a lawyer. No settlement agreement shall be submitted.
However, the lawsuit must specify the measures to be adopted in relation to the custody of the children, visiting arrangements, alimony and compensatory alimony, if applicable, the use of the home, the liquidation of the economic regime of the marriage, if applicable, and other requests that may be of interest.
The lawsuit shall be served on the other spouse so that he/she may reply within 20 days.
A lawyer and a solicitor are required to answer the lawsuit. The answer will state whether or not the plaintiff agrees with what is requested by the plaintiff and will include the measures requested (custody and guardianship, visiting arrangements, pensions, etc.).
Once the lawsuit has been answered, the parties will be summoned to a hearing or oral trial in which the appropriate evidence will be presented in support of the measures requested. These measures will be reviewed by the Judge and the Public Prosecutor, if there are minor children.
If there is a discrepancy over the custody of the children, one of the most relevant pieces of evidence will be the psychosocial report, carried out by specialists.
Since this type of assessment delays the proceedings, we advise requesting provisional measures to regulate the family relationship while the main lawsuit is being resolved. Otherwise, the parties find themselves in a situation of legal uncertainty that especially affects the children.
Once the trial has been held, the judge will issue a sentence recognising, in any case, the divorce and agreeing on the measures that will govern the divorce.
4) Documents required to initiate divorce proceedings
The following documents are required to process the divorce:
Marriage certificate.
Birth certificate of the children.
Certificate of census registration, although this is not always requested.
Deeds or property documents, both for movable and immovable property.
Bank certificates (current accounts, pension plans, personal loans, mortgages and other banking operations).
Depending on the case, other documents may also be required.
Get advice from experienced family lawyers
As we have already seen, the emotional, family and financial implications of divorce are long-lasting. For this reason, it is always advisable to seek the advice of a lawyer specialising in family law to look after your interests. Remember that trying to save money on your divorce can end up costing you a lot more later.
If you need help to get divorced in Spain, in our law firm in Malaga we are at your disposal. Do not hesitate to contact us so that we can advise you and guide you through the divorce process. We are waiting for you!