Divorce by mutual consent

divorce by mutual consent
Published on: 15 June 2024

Table of contents

Divorce by mutual consent, also known as amicable or consensual divorce, is a legal institution regulated in the Civil Code and in the Civil Procedure Act that allows the effects of a marriage to be terminated without resorting to litigation. Here we will focus on explaining all the details related to it.

Legal basis for divorce by mutual consent

The procedure for divorce by mutual consent is first regulated in Article 87 et seq. of the Civil Code (Chapter VIII, dissolution of marriage). However, it is more clearly regulated in Law 15/2005. This text abolished the obligation to give grounds for separation by mutual agreement between the parties. It also introduced the possibility in such cases, provided there were no children involved, of carrying out the process before a notary.

What are the requirements for divorce by mutual consent?

The requirements set out in the Civil Code and the Civil Procedure Act are very limited. Specifically, we are talking about the following:

  • The couple must be legally married.
  • At least three months must have elapsed since the marriage.
  • Both partners must be in a position to submit an agreement setting out the framework for the separation.

But can there be an uncontested divorce with children? The reality is that it can. In fact, it is common for judges and family lawyers to urge the parties to negotiate in order to avoid having to resort to contentious legal proceedings, which are usually longer, more expensive and, above all, traumatic for children.
The difference between an uncontested divorce with children and a divorce without children lies in who can carry out the procedure. In the first case, the law stipulates that a judge must be called in whenever there are unemancipated minors or children of legal age protected by support measures. Even if the woman is pregnant, she will have to go through this route.
On the other hand, when there are no children in common or when they are emancipated adults, the parties can carry out the process before a notary. This is what is popularly known as express divorce.

How to file for divorce by mutual consent?

There are, as mentioned above, two answers to the question of how to separate by mutual consent. It all depends on whether the couple has dependent children or not. Here we will explain the procedure in both cases.

Divorce by mutual consent before a notary

This is the one that can be carried out when both spouses are in agreement and do not have dependent children. It is also not possible to resort to this route if the child is future, i.e. if the woman is pregnant.
The requirements laid down by law are as described above. In addition, both spouses need to be assisted by a lawyer. He or she can represent both simultaneously or each can choose his or her own. What is not necessary in any case is a solicitor, as there will be no recourse to the courts.
The notary, on the other hand, is responsible for assessing whether the settlement agreement submitted to him is balanced and fair. On this basis, he is obliged to point out possible imbalances and even to refuse to authenticate the agreement. This is far from common, but it can happen.
It should also be noted that both the ratification of the will to divorce and the ratification of the agreement will take place in the act. Subsequently, the notary will be in charge of modifying the civil status of the spouses in the Civil Registry. The effects of the divorce will begin when the notarial act is issued.

Divorce by mutual consent through the courts

This is regulated in Article 777 of the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil). Specifically, it defines the following steps:

  • Presentation of the document initiating the procedure and of the certificates of registration of the marriage and of the children in the Civil Registry.
  • Drawing up a proposal for a settlement agreement.
  • Ratify the petition for divorce separately. If one of the two parties fails to do so at the time of the summons, the proceedings will be filed immediately. However, according to article 770 of the aforementioned law, the proceedings may be restarted by means of a verbal trial.
  • Judicial analysis of the settlement agreement and the documentation provided. At this point, the parties are granted a period of 10 days to make changes and additions to the content. Five days are also granted to carry out the proceedings relating to the children.
  • Judgment. The judge will grant or deny the divorce and will rule on the settlement agreement. He/she may approve it in full, in part or reject it completely.
  • Modifications to the agreement. Only if the judge has rejected it in full or in part. The spouses have 10 days to make the changes they deem appropriate and resubmit it.
  • Final judgment. Within 3 days, the judge will resolve the case. As it is final, its effects come into force from the same moment it is issued.

Is it possible to convert a contentious divorce into an amicable divorce?

Yes, in fact, the Civil Procedure Act establishes that a contentious divorce can be converted into an amicable divorce at any time, provided that there is an agreement between the parties. In other words, the two spouses agree on a regulatory agreement with which they are satisfied and initiate the proceedings outside the contentious process. It is the family lawyers hired by both parties who must apply for the change in the courts.

In short, divorce by mutual consent is the preferred option for couples when the time comes to end their marital relationship. This is due to its many advantages in terms of time and money over contentious divorce. We hope we have been of help in clarifying your doubts in this regard.

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