Divorce, types of divorce and process

Divorce is one of the judicial processes most frequently requested by Spaniards. For this reason, we would like to dedicate this article to talk about it, starting with the definition of the concept, continuing with the types of divorce currently contemplated by law and ending with a detailed explanation of the process that must be carried out for it to be valid.

1. Definition of divorce

Divorce is, in a nutshell, the dissolution of the marriage that two parties entered into at a certain point in their lives. This gives the spouses the possibility, if they wish, to remarry civilly. The only condition laid down by law for the dissolution of the marriage is that three months or more have elapsed since the time of the marital union.

The execution of the divorce proceedings implies that both parties lose the rights and obligations that were generated at the time they decided to marry each other, i.e. everything related to widow's pensions, inheritance rights, the obligation to provide food, the duty of fidelity and support, etc.

However, the signing of the divorce agreement does not exonerate either of the parties from their obligations with regard to the children, if there are any, as these do not derive from the marital union, but from the kinship relationship. In fact, such obligations apply even if there has been no marriage between the spouses.

Both spouses have the right to request a divorce from the other, with or without cause. In this regard, it should be noted that, following the publication in the Official State Gazette of Law 15/2005, which regulates divorce in Spain, it is no longer necessary for there to be a prior judicial separation for a marriage to be dissolved.

2. Separation

Despite the fact that, at present, separation is not an essential fact in the processing of any divorce process, the reality is that many couples still make use of this modality and, for this reason, it seems appropriate to mention it.

Generally speaking, the only difference between divorce and separation is that, in the case of separation, there is only a suspension of the life in common that the spouses maintained, not the total dissolution of the bond that unites them. Moreover, reconciliation, for legal purposes, leaves without effect any of the points agreed in the separation agreement. It should be noted that, in order for such reconciliation to be effective, the parties involved must inform the judge in charge of the case.

Both the requirements and the procedure to be followed are exactly the same in the case of divorce and separation, as the law makes no distinction between the two. Since this procedure is detailed below, we will not emphasise it at this point.

3. Types of divorce in Spain

There are currently two different types of divorce in Spain: contentious divorce and divorce by mutual consent. In either case, the only legal requirement is that at least 3 months have passed since the marriage was contracted. It is true that, previously, the law contemplated the cases in which the procedure could be executed, but since the entry into force of Law 15/2005, to which we referred above, these were eliminated and only the will of one of the parties is required.

3.1 Divorce by mutual consent

The process by which a divorce by mutual consent is carried out is currently very quick, simple and inexpensive for both parties. This is mainly due to the fact that both spouses reach an understanding on all the terms related to the case, so that a court judgement is not necessary.

Generally speaking, the following conditions must be met for a divorce to take place by mutual consent:

- Both spouses must agree to dissolve the marriage bond that unites them. This fact must be stated in the existing agreement and be ratified before a competent judge.

- It is compulsory to draw up an agreement specifying in full detail the consequences of the divorce, i.e. all matters relating to the distribution of previously shared property, how relations with the children, if any, are to be established, maintenance payments, etc.

- Three months must have elapsed since the spouses entered into the marriage.

3.2 Contentious divorce

A contentious divorce is one in which one of the spouses requests it without the prior consent of the other, which makes it essential to file a contentious lawsuit through the courts. Obviously, since there is no common agreement between the spouses, this petition is not accompanied by the regulatory agreement, so it will be the judge who, through the relevant divorce decree, will determine the details related to the situation in which each spouse is left.

As we have already mentioned, either spouse can file for divorce by contentious means without the need to allege any cause whatsoever. However, as in all cases, it is necessary that three months have elapsed from the time of the union, as mentioned above.

This way of obtaining a divorce is, obviously, much more expensive in financial terms as each spouse will need a different lawyer. Moreover, it is also more complex and tends to take much longer than a divorce by mutual agreement.

4. The divorce process

Depending on the type of divorce, it will be necessary to go through one procedure or another.

4.1  The process required for divorces by mutual consent

The procedure to be followed to execute a divorce by mutual consent is quite quick and simple. First of all, it is initiated once both parties proceed to file the relevant divorce petition, which must be accompanied by the regulatory agreement establishing the conditions and the situation in which both parties will be left once the dissolution is effective, the marriage registration certificate and, if they exist, the literal birth certificates of the children.

This petition for divorce by mutual consent may be filed by only one of the spouses, provided that the other spouse has given his/her consent. The simplicity of this type of divorce has meant that the whole process can be completed within a few days of the filing of the petition. Moreover, both spouses can be represented by a single solicitor.

4.2 The process required for contentious divorces

A contentious divorce requires a considerably longer, more laborious and more costly process, as both spouses have to hire a separate lawyer and a solicitor. In any case, it is initiated as soon as one of the spouses files for divorce without the consent of the other. This application must be accompanied by the birth certificate of the children, if there are any, by the marriage certificate and, in short, by all those documents that, when the time comes, are useful to prove the financial situation of both parties. Likewise, the suitability of each party to exercise custody and guardianship of the children must also be justified.

Once one of the parties has filed the divorce petition, the other party must respond to it. At this point, the judge will proceed to summon the spouses to a hearing or appearance in which the evidence provided by both parties will be analysed. Based on this fact, the judge will determine, by means of a court ruling, who has custody of the children, the use of the family home, the visiting arrangements for the spouse who has not been granted custody and will establish the amount of the compensatory pension and/or alimony.

In the event of disagreement, the judgment handed down by the judge may be appealed by either party by filing an appeal with the Provincial Court. If this happens, there will be no appeal against the subsequent judgment handed down by this judicial body, which will be considered final and will oblige the spouses to comply with it.

We hope we have been of help to you in resolving any doubts you may have about the types of divorce currently contemplated by the law in Spain and the procedure to be followed in all cases. If you still have any doubts, please do not hesitate to contact a lawyer specialised in divorce.