Divorce by mutual consent: What are the advantages?

Fortunately or unfortunately, depending on the case, many couples have to face divorce at some point. In this regard, we always hear that it is best to divorce by mutual consent. However, do you really know what this means and what advantages it has? As divorce and divorce lawyers, we would like to explain it to you in depth.

Fundamental concepts surrounding divorce

Difference between divorce and separation

The first thing you should know is that divorce is a legal institution whereby, by means of a court ruling and at the request of the couple, a marital union is dissolved. We define it precisely so that you do not confuse this concept with that of separation. This figure only implies that both spouses cease to share the same place of residence. However, it does not mean that their marriage disappears.

Divorces by mutual agreement and contentious divorces

When a couple wants to end their relationship through divorce, they can do so by mutual agreement or by contentious divorce. In the first case, all that is needed is the presentation of a regulatory agreement signed by the spouses for a judge to determine it. In the second, it will be the judge, after the whole judicial procedure has been carried out, who will draw it up by means of a judgement.

The regulatory agreement

This is a concept that we have already mentioned and which is of great importance. It is generally the reason for the dispute in most of the divorces that end up in litigation.

The regulatory agreement is basically a document containing all the measures agreed by the parties or imposed by the judge, depending on whether the divorce has taken place by mutual agreement or by contentious means, which regulate the separation of the spouses. In this sense, this includes the regime of custody and guardianship of the children if there are any, the amount of alimony and compensatory pensions, the regime of stays and visits, the use of the family home.

Are there any requirements to proceed to divorce?

Some time ago, during the early stages of the divorce law passed in Spain in the 1980s, it was essential for one of the parties to allege a cause in order to proceed with the divorce. This meant that most cases ended up in contentious proceedings.

Nowadays, however, the law gives priority to an individual not having to live with someone he or she does not want to live with, rather than to safeguarding a particular legal status. Please note that this is known as family law and that, if you were married in church, you will remain married in church forever. However, in legal terms, it is not something that has any relevance.

The legal requirements for a divorce are set out in Article 86 of Law 30/1981, 7 July 1981, which amends Article 81 of the Civil Code. As we have already said, the mere will of one of the parties is sufficient to break the marital union. However, the legal text to which we have referred specifies that three months must have elapsed since the date of celebration of the marriage.

There is only one exception to this requirement. Specifically, the law states that there is no need to comply with it when there is a risk to the physical integrity, life, moral integrity, sexual indemnity or freedom of the plaintiff. However, in this case, there can never be a mutual consent to divorce.

On the other hand, the law requires both spouses to be assisted by a lawyer and to give their consent, in the event that they wish to reach an agreement for divorce, to a notary or to a lawyer of the Administration of Justice. If there are emancipated children of full age who have no income of their own, they are also obliged to give their consent to the provisions affecting them.

This route is not available for couples with minor children, i.e. divorce by mutual consent cannot be notarised. This is mainly because the public prosecutor's office is responsible for looking after the interests of the children and ensuring that they are sufficiently protected by the agreement. In addition, it must be registered with the court and each party must have a lawyer and a solicitor.

The main advantages of divorce by mutual consent

Divorce by mutual consent is much simpler than divorce by mutual agreement. In this sense, the first great advantage offered by this method is its speed. Generally speaking, it is rare to find a case of a couple who, through this formula, have taken more than 3 or 4 months to break the marriage bond that united them.

This is possible thanks to the simplicity of the procedure. All that is needed is for a lawyer to draw up the document containing the agreement and for both parties to sign it. It is then deposited at the court and the parties wait for it to become effective. When it does, the couple is automatically no longer married. This means that there is no need for a trial, no need to hire lawyers and no need for a court judgement.

In economic terms, an uncontested divorce will always be more beneficial than a contentious one. And, when we say, beneficial, we mean cheap. To give you an idea, it can cost less than a quarter at best. It should be borne in mind that a spouse has the possibility of appealing the divorce judgement all the way to the Provincial Court, which means spending an enormous sum of money on lawyers, solicitors, claims, fees, etc.

Finally, the psychological benefits of this model of divorce should also be emphasised. It generally avoids a great deal of stress and wear and tear for the family members and especially for the children. The children are thus spared from having to testify before prosecutors, judges and psychologists, undergo examinations or see situations of dispute between their parents, for example.

Can a divorce by mutual consent not be valid?

This is a rare occurrence, but it can happen. A judge can decide that a divorce is invalid because the agreement that the parties have signed is not sufficient or does not comply with the law. If he or she does so, both parties will have to meet again and sit down to negotiate. If they are unwilling to do so, the contentious process will begin and it will be the judge himself who will decide.

In any case, this is very unusual since, in general, lawyers, who are the ones who draw up this type of agreement, know which clauses can and cannot be included so that the document is sufficient and not abusive for one of the parties.

I am sure that, at this point, you understand perfectly well what the main advantages of an uncontested divorce are. It is undoubtedly a much more agile, quicker, cheaper and simpler process than a contentious one. Therefore, if you are faced with this situation, your priority should always be to reach an agreement with your partner.

We hope we have been of help and that you have a better understanding of what happens when one of the partners wants to divorce and the other does not. Please do not hesitate to contact us with any questions you may have on this subject.