Divorce and its procedure: regulation and legal tips

Nowadays, disagreements in marriages are more frequent than we imagine. When these differences cannot be solved, the rules of Divorce come into play, but before going into them, it is necessary to make an aside and differentiate between Separation and Divorce.

Chapters VII and VIII of the Civil Code set out, on the one hand in Articles 81 to 84, the regulation of separation, and on the other hand in Articles 85 to 89, the forms of dissolution of marriage (death, declaration of death and divorce).

The difference between Separation and Divorce lies basically in the effects, given that the procedure is similar, the Separation sentence suspends the married couple's life together, the subsequent reconciliation puts an end to the Separation procedure and leaves without effect what was resolved in it, only the spouses must inform the Judge who has processed the procedure, while the Divorce definitively breaks the nexus of union between the couple, the reconciliation subsequent to the Divorce will not produce legal effects, although the divorced parties will be able to remarry each other.

Having clarified the previous point, we will now explain the two ways in which the Divorce procedure or, if applicable, the Separation procedure can be carried out.

The simplest and quickest way is the procedure of mutual agreement, which basically consists of the drafting of a regulatory agreement, in which the parties, within the law, establish a settlement adapted to the personal circumstances of each couple (visiting arrangements and child support, if any, use and enjoyment of the family home, as well as any other stipulation that both parties consider relevant), The aforementioned agreement must be signed in full by both parties and the corresponding Divorce by mutual agreement application must be filed in the corresponding court, accompanied by the agreement previously signed by both parties.

Once the petition has been filed and admitted for processing by the Court, the Court will summon the parties to attend the Court and ratify their petition. Subsequently, a Divorce Judgment will be issued which, once it has become final, will acquire the appropriate legal effects.

Another way in which the spouses can put an end to their marriage is through contentious divorce, which is characterised by the impossibility of agreement between the parties, so the spouses must go to court with their respective lawyers to achieve their claims.

It can be initiated by either of the parties, by means of a written claim presented to the competent court. Once the claim has been admitted for processing, the opposing party, i.e. the other spouse, is summoned to answer it within the time limit and with the formalities established for this purpose by the Civil Procedure Act. Subsequently, a date is set for the trial, which the parties must attend with their legal representatives, after which the proceedings will be ready for judgement.

As in the mutual agreement procedure, once the judgement has become final, it will acquire the appropriate legal effects.

The Family Lawyers at G.Elias y Muñoz Abogados are specialised in matters related to Family Law, call us and we will be delighted to help you.