Notarial divorce in Spain

Through the reform introduced by Law 15/2015 on Voluntary Jurisdiction, notaries in Spain are given the power to formalize separations and divorces by mutual agreement, provided that a series of requirements are met. Prior to the reform, this action was the exclusive competence of judges.

The notarial divorce in Spain allows the dissolution of the marriage bond before a notary, avoiding having to go through a judicial process, as these tend to be slower and more tedious.

Requirements to be met by the marriage:

According to article 82 of the Civil Code, to be able to carry out a notarial divorce in Spain, the marriage must fulfil a series of requirements:

Existence of mutual agreement for the dissolution of the bond.
At least three months must have elapsed since the marriage.
There must be no unemancipated minors or minors with judicially modified capacity who depend on the parents.
If there are children of legal age or emancipated minors, they must express their consent to the measures that affect them.
For a notarial divorce to take place, the woman must not be pregnant, since the child in this case shall be considered as already born for all the effects that are favorable to him/her. For this reason, the intervention of the Public Prosecutor’s Office is necessary, given that it must look after the interests of the minor, therefore, the divorce must be judicial, so that the Public Prosecutor safeguards the rights of the unborn child.

Notarial divorce proceedings in Spain:

The steps to be able to process a divorce before a notary in Spain by means of a notarial deed are as follows:

Firstly, the spouses must appoint a lawyer, since, as stipulated in Article 82 of the Civil Code and Article 54.2 of the Notarial Act, the intervention of the lawyer is compulsory for the drawing up of the settlement agreement and for advice during the proceedings.

The spouses may be represented by the same lawyer.

Afterwards, the parties must freely choose a notary, namely a notary of the last common domicile, or a notary of the habitual place of residence of either of the spouses.

Diplomatic or consular officials, even if they have notarial powers in the country where the Spanish embassy or consulate abroad is located, may not authorize the public deed of divorce.

The lawyer will then draw up the settlement agreement. The settlement agreement is essential, the lack of such an agreement leads to the judicial proceedings to execute the divorce. As established in article 90 of the Civil Code, the purpose of the agreement is to reflect the conditions agreed by the spouses regarding:

Use of the home and family trousseau.
Contribution to the common expenses, as well as their bases for updating and guarantees, if applicable.
The liquidation of the economic regime of the marriage, where applicable.
Establishment of a compensatory pension in favor of the spouse whose economic situation worsens because of the divorce, when appropriate.

According to Article 87 of the Civil Code, the settlement agreement must be submitted to the notary together with the necessary documentation, which consists of the national identity documents of the spouses and children of legal age or emancipated children, which must be presented to the notary, family book, marriage certificate, documentation of the children and census certificate of the spouses. Together with the lawyer’s documentation.

The agreement can be modified later following the same requirements.

Afterwards, the notary must check whether the spouses meet the requirements. If the notary considers that some of the agreements reached may be harmful to one of them or to the children of legal age or emancipated minors, he/she will issue the corresponding warning and terminate the file. In this case, the spouses may only appear before the competent court to approve the proposed settlement agreement, as established in Article 90.2 of the Civil Code.

The notary sets a date for the spouses to ratify the agreement and give their consent.

As stipulated in Article 82.1 of the Civil Code, the spouses must appear in person to give their consent. The lawyer must also be present, to sign the divorce deed together with the spouses.

After this, the notary must authorize the deed of agreement, and once authorized he/she will forward the divorce agreement to the Civil Registry for registration, as provided for in Article 61 of the Civil Registry Act.

The notarial deed of divorce takes effect from the moment it is signed, according to Article 89 of the Civil Code.

The effects of a notarial divorce are the dissolution of the marriage, the termination of the matrimonial property regime and the suspension of the joint life of the spouses, which means that the possibility to bind the property of the other spouse in the exercise of domestic authority ceases.

Next, the transfer tax and stamp duty is paid.