Formalities for commencing separation

A marital breakdown, whether in the form of separation or divorce, is usually a painful moment in the life of any person since, in one way or another, it means the failure of a common project. In addition, in legal terms, it requires the beginning of a series of procedures in order for it to become effective. In order to clarify any doubts you may have about it, we, as lawyers specialising in family law, would like to talk to you about it in depth so that you understand exactly what it consists of. Here we are going to talk to you about the necessary steps to start a separation process.

What is separation?

First of all, separation and divorce are not synonymous. In fact, separation may not entail divorce, whereas divorce will always entail separation.

This is mainly because, in legal terms, separation is understood as the end of the cohabitation between two people who are linked by marriage without this implying the dissolution of the marriage.

Separation gives both spouses the right to reside in separate residences even if the marriage has not been dissolved in order for them to start a new life. Generally, this is a temporary situation until the divorce.

What types of separation are there?

The Civil Code and the Civil Procedure Act, which appears in the Voluntary Jurisdiction Act of 23 July 2015, specify that there are two different types of separation, which are:

De facto separation

This occurs when the marital cohabitation ceases due to the decision of one or both spouses to leave the family home. However, this case has the peculiarity that it occurs without express notification to the competent court.

With regard to this type of legal separation, it should be borne in mind that as long as there is no final court ruling that accredits it, the economic regime of the marital union must be maintained as long as it is a community of property regime. In the case of marriage contracts, i.e. separation of property, this is not the case.

This basically means that if the community of property regime was adopted at the time of the marriage, it will remain in force with regard to the economic activities of both spouses, so that the business of one party and their corresponding debts will affect the other and will imply an obligation to respond.

This type of separation has a very clear handicap. This is that, when it occurs, the other spouse can say that there has been abandonment of the family. For this reason, it is really important to go to court to notify the separation, if possible by mutual agreement.

Judicial separation

This occurs when, after having notified the court of the de facto separation, the competent judge issues a judicial decision that allows each of the spouses to freely dispose of their assets and their person without putting at risk the assets of the other spouse.

This type of separation can take place in two ways, which will define the process to be followed: by mutual agreement and contentious judicial separation.

Formalities for legal separation by mutual agreement

As its name suggests, this type of separation takes place when there is an agreement between both spouses to carry it out. The only legal requirements for this to occur are that, on the one hand, three months have passed since the marriage took place and, on the other hand, the application for separation must be presented together with a regulatory agreement.

This agreement must contain the information related to the agreement reached regarding the custody and guardianship of the children, alimony and compensatory payments, visiting arrangements, use of the family home, etc. Since both parties agree, it is not necessary to allege any cause to proceed with the separation and, obviously, there will be no trial. They will only have to sign the agreement in front of the competent judge.

These are the steps to follow:

1.- Presentation of the lawsuit: it is necessary to bring with it the marriage certificate from the Civil Registry, the birth certificate of the children if there are any, the census or residence certificate and a general power of attorney for lawsuits that endorses the solicitor representing each spouse.

2.- Waiting for the admission of the lawsuit in court.

3.- Setting a date for ratification: a date must be set for signing (ratifying) the agreement in court. If there are minor children, in addition to both parties, the public prosecutor's office must also be present.

4.- Publication of the sentence and registration in the Civil Registry.

Procedures for contentious legal separation

This type of separation takes place when both spouses do not reach an agreement to carry it out. Therefore, it is necessary to go to the Court of First Instance that corresponds to the domicile of the spouses and file an application for contentious legal separation.

Obviously, since there is no agreement, it is not necessary to present a regulatory agreement as explained in the previous case. Likewise, it will not be necessary to allege any cause to proceed with the separation. On the other hand, the only case in which it is not necessary to wait three months after the beginning of the marital union is if there has been gender or domestic violence.

Both parties need a lawyer and a solicitor and, in general, it is much more expensive and longer than in the case of a separation by mutual consent.

Depending on the situation, the judge may order interim measures regarding visiting arrangements, custody of the children, maintenance, etc. These will be effective until the publication of the final judgment.

The steps to be followed are as follows:

1.- Presentation of the contentious claim: it must be accompanied by all the documents that can be used to accredit the economic situation of both spouses, i.e. bank statements, payslips, tax returns, etc.

2.- Wait for the response from the other spouse: since this claim is filed by only one of the parties, it will be necessary to wait for that party to respond, after which the judge will summon both parties to a hearing which they must attend with their respective lawyers and solicitors. The Public Prosecutor's Office will only have to be present if there are minor children. They may also testify if the judge deems it appropriate. All the evidence must also be presented for the judge to decide.

3.- Passing of the sentence: in it the judge will establish the measures that, from that moment on, will have to be put into practice with regard to the relationship between the two spouses and between them and the children.

Registration in the Civil Register: the judgment must be deposited in this body and, in the event that one or both spouses is an entrepreneur, also in the Mercantile and/or Property Register.

Is it possible to appeal or reverse the proceedings?

If one of the spouses does not agree with the judgment, he or she may appeal to the Provincial Court. All the measures that appear in the agreement can be modified in court if the circumstances of one of the parties change substantially. A good example of this would be if the person responsible for paying child support loses his or her job.

On the other hand, if there is a reconciliation between the spouses during or after the separation proceedings, this is annulled as long as both parties notify the court separately. The judge may decide to maintain certain measures with regard to the children if there is good cause to do so.

We hope we have been of help and that now you have everything clearer about the procedures to start the separation, if you need our services as expert lawyers do not hesitate to contact us.