Divorce when one of the parties disagrees

One of the most common questions asked by law firms specialising in marital separations is whether one of the parties can divorce when the other does not want to. Undoubtedly, this is a question that requires an in-depth analysis, which we are going to carry out here.

Can you divorce if your partner does not want to?

The answer, so as not to delay it any longer, is yes. According to the legislation currently in force, the consent of the other party is not required to accede to this civil status.

Canon law should never be confused with civil law. The former, which is applied by the Catholic Church, establishes that when a person marries another person through this institution, it is for life. Therefore, for her, even if divorce occurs, they will still be married. Beyond that, this has no impact on the normal life of the subjects concerned.

On the other hand, civil law, which is the prevailing law, gives priority to the fact that a subject does not have to maintain the bond against their will and have to live together with that person.

It should be noted that this was not the case in the past. At least, not exactly. The original divorce legislation provided that the marriage could be broken if one of the parties was unwilling to do so, provided that there was a reason stated in the legal text. The latest amendment to the Divorce Act put an end to this issue.

Requirements to be able to get divorced if there is no agreement

The legislation currently in force only provides for a few minor requirements for a person to be able to obtain a divorce by this route. Specifically, it establishes that it is essential that at least three months have passed since the marriage was contracted and that one of the parties formally requests it.

Mutual agreement

The best way to divorce is by mutual consent. This is mainly due to the fact that the process is speeded up and ostensibly cheaper for both parties. It establishes the formulas that will regulate the break-up. This is the point at which possible alimony and compensatory payments, the child custody regime, if there are any, and all other aspects relating to the marital partnership to be dissolved, must be negotiated.

It should be remembered that the mutual agreement only regulates the manner in which the divorce is to take place, not the divorce itself. In this regard, the interested party is obliged to file a divorce petition with the court that has been drafted by a lawyer and wait for the process to begin, which usually does not take more than a few days.

What happens when there is no agreement between the parties?

We have already said that a person cannot prevent another person from divorcing him/her. However, he or she can condition the way in which this will take place. In fact, he or she is in a position to delay it and, above all, to make it more expensive. Generally, this is what is meant by all those who tell their partners that they are not willing to grant a divorce, even if they do not know exactly what they are doing.

If there is an agreement between the parties, an 'express' divorce takes place. It is so called because it is processed in a few days, provided that the requirement mentioned in the previous paragraph has been met. It is sufficient that the agreement has been drafted and signed by both parties.

On the other hand, if this agreement is not produced, the divorce will go to the corresponding contentious court and a judge will be responsible for regulating the break-up. In this sense, he or she will establish, according to his or her criteria, all the aspects included in the divorce agreement between the two parties and will enforce compliance with it.

It should be noted that the party who does not want to grant the divorce can ask his or her lawyer to file all the complaints, appeals and objections to both the divorce petition and the sentence issued by the judge in order to delay the process as much as possible. In fact, he has the power to take the case all the way to the Provincial Court if he deems it important. However, this entails a series of expenses in lawyers, solicitors, detectives, fees, expert witnesses and other very considerable elements.

All of this can delay the divorce proceedings by one or two years. The result will be the same because, as a general rule, divorce judgments are based on common sense. In fact, they are based on aspects that could have been agreed without difficulty.

In any case, we would like to remind you that, even if you resort to contentious proceedings, the divorce will take place if one of the parties is determined to achieve it.

Some conclusions about divorce when one of the parties does not agree to divorce

We will end this article by summarising the main aspects we have covered in this article so that you will leave with a clearer idea of what happens when one of the parties does not want to divorce.

• First of all, your partner does not have to give his or her consent for you to divorce her. More than three months must have elapsed since you married her.
• Secondly, if you reach an agreement on how the divorce will take place, you will save time and money by using the so-called 'express' divorce formula. In just a few weeks you will have dissolved your engagement and your relationship.
• Finally, if there is no agreement, it will be a judge, through contentious proceedings, who will decide how the separation should be carried out. However, as long as one of the partners wants to, the divorce will always take place sooner or later.

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