Separation with children without being a cohabiting couple or being married

The process of separation with unmarried and unmarried children is very similar to that of divorce. During the course of the process, it is necessary to resolve issues related to custody, alimony or visiting arrangements, for example. Therefore, in addition to resolving property issues, it is necessary to initiate proceedings for parental measures.

The dissolution of the joint assets

We will briefly explain this point as it does not involve too much complexity. Specifically, if a couple is not married, there is no economic regime that unites them and, therefore, there is nothing to dissolve. The properties that both have in common will have to be submitted to the extinction of the condominium. This will allow them to be adjudicated and liquidated.

I want to leave my partner but we have a child: what should I do?

In the case of separation with children without being married, the same legislation applies as for divorces of the same type. We are talking, of course, about the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil). The complexity will depend on whether the parents of the children have reached an agreement or, on the contrary, are going to litigate in court.

The document of paternal and filial measures

Obviously, since there is no marriage involved, there is no divorce either. However, in order to regulate the parental measures that will regulate the relationship of both parents with their children in the future, it is necessary to draw up a document similar to the regulatory agreement.
In this document it will be established:

• The custody of children of unmarried parents. In this regard, it will be necessary to determine whether a regime of shared custody or single-parent custody is established. If there is no agreement between the parties, it will be the judge who decides.
• The use of the family home. Evidently, if a single-parent custody regime is established, the spouse who obtains custody will be the one entitled to its use and enjoyment.
• Child support. Child support for unmarried children is payable to the partner who does not have custody. It will be fixed according to the income of the parents and the expenses that the child needs.
• Visitation and communication. According to the law, the parent who does not have custody of the children has the right to communicate, visit and be with them. The limits are set by the agreement or document of parental measures.

The judicial process of the proceedings on parental-children measures

As mentioned above, there are two ways to carry out this procedure:

• By amicable agreement. In other words, both parents agree on how the separation with unmarried children is to be carried out with regard to the minor children. Subsequently, the document has to be initialled by a judge. This is because, as there are children involved, a court must be satisfied that their rights are protected.
• By contentious proceedings. There are cases in which the parents do not agree when it comes to drawing up the agreement without being married. In these cases, it will be the judge who, always prioritising the interests of the child, will determine custody, visiting arrangements and the use of the family home, among other aspects.

It should be noted that, whether the children are minors or whether one of them is disabled, the intervention of the Public Prosecutor's Office is compulsory. In any case, depending on the situation, the steps to follow to separate without being married vary slightly. Let's take a look.

Separation with children by mutual consent

In this case, common sense dictates that the couple should have a lawyer specialised in family law draw up the document of parental measures. Its purpose should be to express the will of both parents so that the judge can approve it. Let us not forget that it is the judge who has the final say and that, if he or she considers that the rights of the child are not protected or that the parent is harmed, he or she will be able to modify it.

Separation with children through contentious proceedings

In this case, the parents do not reach an agreement and refer the case to a judge, who will decide. One of the parents, with the help of their family lawyer, drafts a proposal for a document on parental measures. The judge will summon the other parent to oral proceedings to present his or her claims. On the basis of the available evidence, he or she will issue a final agreement in the form of a judgment.

Frequently asked questions about separation with children without being married or in a common law partnership

Here we will answer some common questions related to this type of separation. We hope to clarify your doubts through them.

If I am not married, what rights do I have?

The only difference is that there will not be a property regime that binds you to your partner. Therefore, it will not be necessary to dissolve it. This is essential both in the case of community property and separation of property. It is also unusual for judges to award compensatory pensions to the financially disadvantaged parent, although this is not impossible.

On the other hand, it is normal that, if you have single-parent custody, you will also be assigned the use of the main residence. It does not matter if it is exclusively in your partner's name.

What is the division of property in a separation without being married?

We have already said that in an unmarried couple there is no property regime to dissolve. Therefore, the other parent cannot participate in those assets that belong to only one of the parents. 

On the other hand, those that have shared ownership are subject to the extinction of the condominium. It is possible to execute it by selling the property to a third party and dividing the proceeds, although it is more common for one of the members to buy their share from the other.

Regarding the separation without being married with children and mortgage, it is important to say that the obligation to continue paying the loan is maintained in equal parts as long as the ownership of the property is shared.

In short, we hope we have helped you to understand the procedure for separation with children without being married or in a common-law relationship. If you have any doubts, please contact us.

 If you would like more information, ask for a consultation with any of our divorce lawyers. We are available online anywhere in Spain.