How to get divorced before a notary

Notarial divorce is what is popularly known as 'express divorce'. This is mainly due to the fact that it considerably speeds up the process, so that it can be carried out in a few days provided that there is mutual agreement and without the need for the parties to appear before a judge.
But how is an express divorce before a notary public carried out? It is advisable to go to a divorce lawyer, and in any case, we will explain everything here.

Requirements for divorce before a notary

The possibility of proceeding with the separation by mutual agreement before a notary has been contemplated since the publication of Law 15/2015, on Voluntary Jurisdiction. In it, reference is made to article 87 of the Civil Code with the purpose of establishing the necessary requirements to carry it out. These are:

• At least 3 months must have elapsed since the celebration of the marriage.
• There cannot be any unemancipated minor children. Nor descendants in a situation of dependency due to judicially recognised incapacity.
• In the event that there are children of legal age or emancipated minors, they will have to endorse with their signature those measures that affect them. This is particularly common in the case of children over 18 years of age who still live in the family home.
• The spouses must express their will to separate by means of the divorce deed. The effects of the divorce must also be specified in the deed.
• The assistance and presence of a lawyer for divorce by mutual consent is compulsory. In fact, he or she must also sign the divorce deed.
• The couple may choose the notary who is most convenient for them within the same municipality in which they jointly resided.
• It is compulsory for both spouses to appear before the notary to sign the divorce deed. By this we mean that it is not a procedure that can be delegated by virtue of representation to a third party.

To this must be added the most important factor: mutual agreement. If both parties, even if they meet the aforementioned requirements, do not reach an agreement to proceed with the divorce, they will have to resort to the courts.

On the other hand, we also have to talk about the documentation that must be presented to the notary in order to execute the divorce. Specifically, we are talking about:

• The DNI of both spouses and, if there are any, of the children of legal age or emancipated minors, provided that they have to appear before the notary by virtue of the above.
• The family record book.
• The birth certificate of the said children, if any.
• The certificate of matrimonial registration in the Civil Register.
• The divorce agreement agreed between the parties.
• The certificate of census registration of the spouses in the family home.

Likewise, the lawyer representing the couple must also present his or her ID card to the notary, as well as documents proving that he or she is a member of the bar and is authorised to practise his or her profession.

What information must be included in the divorce settlement agreement before the notary?

As we have already mentioned, a notarial divorce can take place under very specific circumstances. For this reason, the content of the settlement agreement is also very specific. In particular, it must state to whom the use of the household goods and the family home is attributed, as well as the contribution to the common expenses (matrimonial burdens) of each party. In addition, where applicable, it must also contain the details of the settlement of the property regime and the conditions for the granting of alimony.
However, the notary has the power to read and analyse the agreement. If he/she detects any irregularities in its content or if he/she considers it to be particularly detrimental to one of the parties (or to the emancipated minors or adult children of the couple), he/she may not sign it and terminate the file. In that case, the remaining spouses will have to appeal to a judge, who will determine whether the proposal is actually fair or not. This is specified in Article 90.2 of the Civil Code.

What to do once the divorce deed has been signed?

The divorce deed has been signed by all parties involved and is now valid. However, for official record purposes, the notary will send it the same day or the following day to the appropriate civil registry office. The registration will take place immediately.
There is another element of which many spouses and former spouses are unaware. Specifically, we are referring to the fact that the regulatory agreement is a document subject to ITP (transfer tax) and IAJD (stamp duty). Their respective amounts depend on each autonomous community. Both must be settled within 30 calendar days of the execution of the divorce deed.

Finally, the former spouses must make the relevant registrations in the Land Registry of the assigned assets. Once this has been done, the process of express divorce before a notary public is completed.