What kind of steps do I have to take to initiate divorce or separation proceedings?

A divorce is, in many cases, a heartbreaking experience for at least one of the parties involved. However, for both or for one of them it is often also a liberating event. What is clear is that, when it comes to the situation where living together is impossible, it is practically the only option for both parties to continue their lives.

One of the most common questions asked by law firms is related to the procedures to be carried out in order to initiate the divorce process. At Elías y Muñoz, as expert lawyers in family law, in this article we are going to focus on this question and we will explain exactly what the essential steps are for each type of divorce.

Amicable divorce or divorce by mutual consent

This figure has existed since the origins of the Divorce Act. However, it was not until the modification of the Civil Code and the Civil Procedure Act carried out on 23 July 2015, which was introduced by the Voluntary Jurisdiction Act, that this process can be processed out of court before a notary. Obviously, it is also possible to carry it out through the conventional judicial process, although it is usually a longer process that ends at the same point.

Formalities required for an out-of-court divorce before a notary public

This procedure is only available if there is an agreement between the spouses and if they do not have minor children who are not emancipated from the family home. It is also not possible if the children's capacities have been judicially modified.

This is undoubtedly the cheapest and quickest way of all. The other additional requirement, which is indispensable in all cases where there is no complaint of domestic violence, is that at least three months have passed since the marriage.

What needs to be done is to go to a notary to execute a public deed in which the will of both spouses to divorce must be clearly stated. Each of the spouses must be accompanied by a lawyer who will advise them personally.

According to Article 90 of the Civil Code, the deed must clearly specify the contribution of each spouse in terms of family responsibilities, possible alimony and maintenance payments, and who has the use of the family home.

Formalities required for an uncontested divorce by mutual agreement

This is also a simple, quick and inexpensive procedure, although not as simple as the previous one. To initiate it, it is sufficient to file a divorce petition and a document reflecting the regulatory agreement that will govern the divorce and the subsequent situation of both parties at the court that corresponds to the couple's last family residence. In this regard, current legislation allows both parties to be represented by the same lawyer and a single solicitor, which greatly reduces the costs.

Contentious divorce

This type of divorce occurs when there is no agreement between the parties. This is the reason why it is initiated by the filing of a lawsuit by only one of the spouses. Of course, this prevents the existence of a settlement agreement. This does not mean that the measures requested regarding the custody of the dependent children, the corresponding alimony and compensatory pensions, the visiting arrangements to be agreed and the use of the family home should not be indicated. In any case, it will be the judge who will determine which ones and how they are to be enforced by means of a judgment.

The contentious divorce procedure

This is a longer and more costly process. However, you can be sure that, even if one of the parties objects, as long as one of them wants it, the result will always be a divorce. The only thing that will vary is the amount of time and money that has to be invested.

The next stage following the filing of the divorce petition is the commencement of the oral proceedings. Here, the respondent spouse will have to respond to the proposal of the regime drawn up by the other spouse at a hearing at which both spouses will have to be represented by their own lawyers and solicitors. If there are minor children, the Public Prosecutor's Office will also have to take part in the proceedings to guarantee their rights.

Once this procedure has been completed, the judge will issue a judgement and, unless there is no appeal, will send it to be recorded in the Civil Registry and will determine the way in which the measures determined should be put into practice. If one of the spouses is an entrepreneur, he or she must also send it to the Land Registry or, failing that, to the Commercial Registry.

You should be aware at this point that the various aspects and agreements set out in the judgment can be modified in the future by the courts. This is contemplated in article 775 of the Civil Procedure Act. Specifically, it refers to the fact that this may be done when the circumstances that gave rise to the original settlement agreement have been substantially altered.

Is it possible to move from amicable divorce to contentious divorce and vice versa?

The answer is yes. A divorce initiated by contentious proceedings can end up being amicable as long as the parties reach an agreement on the regulatory agreement that will govern the separation during the course of the process. Similarly, a divorce that starts out amicably may end up being contentious if, in the middle of the process, new discrepancies arise or one of the spouses believes that his or her rights are being undermined.

In the latter case, a divorce by mutual consent can become contentious until the very last moment. This is because both spouses have the right not to ratify before the notary or before the court the lawsuit and the regulatory agreement that they had previously agreed upon. In this type of case, the case is archived and either of the parties must file a new petition for divorce under the conditions specified above.

Conclusions

In short, a divorce by mutual agreement, whether judicial or extrajudicial, will always be a cheaper and quicker process than a contentious one. Moreover, it will also be much less traumatic for the spouses and for the children, if there are any. This is why law firms always recommend exhausting all possibilities of understanding before filing a lawsuit in court.

However, this is not always possible. Even the defendant has the right to appeal all the way to the provincial court in his place of residence. This would make the proceedings even more expensive and time-consuming. But, in any case, you should always bear in mind that if one of the two parties is determined to obtain the divorce, they will end up getting it. The law gives priority to the fact of allowing a person not to live with someone he or she does not want to live with over any other legal aspect.

If you have any doubts or if you are thinking of initiating divorce proceedings and you do not know how to proceed or what is best for you, do not hesitate to contact us, we will be delighted to help you.