Divorce proceedings in Spain.
Definition of divorce (art 86 requirements): Divorce is le legal act aimed to execute the definitive severance of the marriage bond.
According to Article 86 of the Spanish Civil Code, the court must decree the divorce regardless of the form of celebration of the marriage, at the sole request of only one of the spouses, of both or of one of them with the consent of the other, provided that the requirement that three months have elapsed since the celebration of the marriage is met, as established by Law 15/2005, of July 8, 2005. Such law amended the Civil Code and the Civil Procedure Law on divorce and eliminated the need to justify the existence of legal grounds for separation and divorce in Spain. Therefore, the only intention of the parties at stake is enough to initiate and conclude a divorce proceeding in Spain.
The right to initiate the divorce action in Spain expires when one of the spouses dies and by their reconciliation, which must be explicit when it is brought after the divorce application has been lodged.
Nevertheless, the reconciliation of the spouses after the termination of the divorce proceedings has no legal effect, in accordance with the article 88 of the Spanish Civil Code.
Types of divorce in Spain:
There are two types of divorce in Spain, divorce by mutual agreement or contentious divorce.
The divorce by mutual consent is the legal termination of the marriage carried out by the consent of both spouses. The spouses may agree to divorce in this way by means of a regulatory agreement before the competent court or in a public deed and must comply with further legal formalities in accordance with the article 87 of the Spanish Civil code.
A contentious divorce is the legal termination of the marriage initiated by one of the parties without the consent of the other (regulated by article 86 of the Spanish Civil code)
Effects of divorce in Spain:
The divorce shall be effective since the court judgement is passed or from the explicit confirmation of the consent of both spouses granted through a public deed (Art 89 of the Civil Code).
The main effect of the divorce is the dissolution of the marriage bond. In this regard, the reciprocal duties arising from the marriage cease for the former spouses, although the duty of mutual support, which is grounded in the alimony, persists. In addition, the dissolution of the matrimonial property regime will take place through the signed divorce decree. Regarding the inheritance effects, the ex-spouse will not succeed his ex-spouse.
In relation to the children of the marriage, the divorce does not affect the responsibility of the parents towards the children. Besides, the divorce judgement shall not harm legitimate rights of third parties.
Formalities aimed to initiate the divorce judicial proceedings in Spain:
In any case, a divorce claim must be filed before the competent court. Then the proceeding varies depending on the nature of the action, namely, if the action has been filed by one of the parties without the approval of the other party or if the judicial action has been filed in a consensual manner by both parties.
For this type of process, both parties must be assisted by a qualified lawyer.
As anticipated before, in Spain, in order to execute a divorce action, it is not necessary to invoke any reason, nor to go through a previous judicial separation process. Only the intention of pone of the parties is enough to proceed with the legal proceeding for divorce in Spain.
The steps in a divorce by mutual consent process in which there are no children as well as those in which there are children involved are the same. The only different between both cases us that, in case minor children of the marriage are involved, the Public Prosecutor shall participate in the proceedings and file allegations in order to protect the children rights.
In this type of divorce in Spain (mutual consent) there are three steps. Firstly, a regulatory agreement is drawn up, which establishes guidelines related to the situation of the children and the matrimonial property regime. Then the lawsuit is filed at court together with the regulatory agreement. In this case, if there are children, the Public Prosecutor’s Office verifies that there are no circumstances that could harm the children.
Finally, the agreement is ratified, and a divorce judgement is issued.
If there are no minor or disabled children involved, the divorce proceeding in Spain can also be processed before a Notary Public.
In contentious divorces, on the other hand, the party wishing to initiate the divorce must file a complaint at court detailing the terms that should be established to rule the termination of the marriage. The assistance of a qualified lawyer is compulsory in such proceedings in Spain.
The court will notify the divorce complaint to the other party granting the possibility to reply to the demands of the plaintiff. Finally, a judgement will be passed on the disputed terms and a final settlement agreement will be approved by the court. If either party does not agree with the terms of the agreement, they can appeal against the judgement.
If the spouses have children, they must consider further matters such as custody, use of the family home, alimony and visiting arrangements, as established in article 90 of the Spanish Civil Code.
If you need further information or need legal advice in this regard, our lawyers will be pleased to help you in such proceedings. You can contact us by email: info@kaplanlegal.es