How to divorce in Spain. Divorce proceedings

Divorce is the legal act aimed at dissolving the marital union between two people and allowing them to remarry whomever they wish. However, this term is also often used to refer to the entire process aimed at ending the relationship between the two spouses. It is articulated in Article 85 et seq. of Chapter VIII of Title IV of the Civil Code. Here we would like to go into it in more detail in order to understand all the steps that must be taken to make it effective.

When is a divorce decreed?

Article 86 (Chapter VIII of Title IV of the Civil Code, as mentioned above) indicates that, in order for a divorce to be judicially decreed, it is necessary to comply with the requirements and circumstances set out in Article 81:

In order to apply for divorce, 90 days must have elapsed since the date on which the marriage was entered into. This requirement does not apply if it is proven that there is a risk to the health and physical, psychological and moral integrity of the petitioner.

It is also essential that the initiative comes from at least one of the spouses.

The petition for divorce must be accompanied by a proposal for a regulatory agreement that establishes the terms of the end of the marital union.

This means that, in Spain, anyone who wants to divorce their partner can do so without any legal impediment or obstacle. In other words, the mere desire to end the marriage is sufficient for it to become effective. However, as we will see, the process will be very different depending on whether there is an agreement between the parties or not.

Types of divorce

There are basically two types of divorce: divorce by mutual consent and contentious divorce. Let's take a look at the formalities involved in each of them.

Divorce by mutual consent

One of the best pieces of advice we can give you before getting divorced is to try to reach an agreement with your partner. Why? When the process follows the provisions of article 87 of the Civil Code and article 777 of the Civil Procedure Act, everything becomes much quicker, simpler and cheaper for both of you. It also ends up being less traumatic for the children, if there are any.
To initiate divorce proceedings in this case, it is sufficient for one of the spouses to express his/her desire to break the marriage union after 90 days have elapsed since the wedding. At that time, one or both of them must contact a lawyer who will draw up an agreement. This will set out and define the consequences of the divorce. It should include:

Joint assets. A proposal for the dissolution or liquidation of the community property must be presented. The most important thing is to indicate how the trousseau and the family home are to be attributed. But it must also refer to any other movable or immovable property whose ownership is shared by both spouses.

Compensatory pension. Only if applicable in accordance with Article 97 of the Civil Code. It is intended to 'compensate' the party to the marriage who has suffered the most damage as a result of the divorce (for example, a woman who gave up her professional life to take care of the children). It is not associated with alimony.

Alimony. An aspect unique to divorce with children. It is the financial amount that the non-custodial spouse will have to pay to the custodial spouse each month. It should include ordinary expenses and be clearly specified. Even if not detailed, it should also cover the extraordinary expenses of the children.

Visitation, custody and communications. Another essential point when divorcing with children. The agreement reached by the parties must be specified and reflect the visiting arrangements for grandparents and other close relatives.

The services of a lawyer for the drafting of the agreement are of vital importance. The first reason is that he or she will be able to ensure that the rights of both parties are respected. The second is that he or she will meet all the requirements for the document to be accepted by the judge.
In any case, once the agreement has been drawn up, the only thing left to do is to formalise the decision. If it is not a separation with children, it is possible to do this through a notary. This is popularly known as 'express divorce' and is the quickest and cheapest option. It is enough for both spouses to express their desire to divorce before the notary so that, after reviewing the document to ensure that it complies with the law, he or she can register it in the Civil Registry.
On the other hand, in the case of a divorce agreement with children, it will be necessary to file the divorce petition and wait for the regulatory agreement to be ratified by a judge by means of a judgement.

Contentious divorce

It is possible that, although one of the spouses clearly states his or her will to divorce, the other spouse does not agree and does not want to negotiate. In this case, he or she has no choice but to go to court in accordance with articles 769 et seq. of the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil).
The first step is to hire a family lawyer to defend your interests in court and to prepare you on how to deal with a divorce. A solicitor is also necessary. In this case, if there is no agreement, it is not possible to present a proposal for a settlement agreement in the lawsuit. In addition, if the divorce involves young children, the Public Prosecutor's Office will intervene to look after their welfare.
The stages of any contentious divorce can be summarised as follows:

The divorce petition. This will express the will to break off the marriage and will propose a series of measures to be adopted once the divorce is formalised. They are similar to those that would be established in the regulatory agreement, but they do not have the same character.

Notification. The petition for divorce must be served on the other spouse within a maximum period of 20 days. The other spouse must respond by expressing his/her agreement or disagreement. Normally, if this point has been reached, he or she will not agree with them and will propose others.

Hearing. The judge, after having studied the divorce petition and the allegations of the other party, will summon both spouses to present the evidence they wish to present. On the basis of this hearing, the judge will issue a divorce decree regulating the marital breakdown.

This process can take several months. However, the problem is that, once the judgment has been served, the parties have 20 working days to appeal. If either party appeals, the judgment will be upheld or modified within 6 months. It is also possible for one of the spouses to request a retrial because of evidence not shown in the first trial.
Undoubtedly, these are possibilities that significantly increase the cost in time and money of the divorce process. So much so that it can even take years. It is true that if one of the parties is determined to get a divorce, they will succeed, but their effort may be much greater than they imagined.

When does the divorce take effect?

It depends on the case. In an 'express' divorce by mutual consent, it takes effect from the moment the spouses declare before a notary their intention to terminate the marital relationship that unites them. This is specified in Article 89 of the Civil Code.
On the other hand, in those cases in which it is necessary to resort to the courts, it is necessary for the judge to publish and notify the final judgement. Until then it will not be effective.

Is it possible to extinguish the divorce?

According to Article 88 of the Civil Code, yes. However, this can only occur under two circumstances. The first is the death of either of the former spouses who were united by marriage. The other is that there is an express reconciliation between the spouses. Either of these two events terminates the consequences of divorce.

Conclusions on divorce proceedings in 2021

In short, any married person has the right to divorce his or her partner at any time he or she chooses. In fact, it is enough to express their will before a notary or a judge to do so, regardless of whether their spouse agrees or not. However, the spouse's willingness to reach an agreement or not will determine the speed and amount of the process. Therefore, one of the best pre-divorce tips we can give you is to try to reach an understanding with your partner at all costs. This will help you to turn the page faster, save money and avoid a very traumatic process for your children.