Separation with children without being a cohabiting couple or being married

What happens when an unmarried couple with children separates? As far as the children are concerned, the same steps must be followed as if the parents were married, regulating: parental responsibility, custody, contact arrangements and child maintenance. In this article, we examine the issue as expert family lawyers.

It is quite common for an unmarried couple to have children, but when the relationship breaks down, they may not know how to manage the situation in order to protect their children and comply with the law.

Separating with children without being married: what steps should be followed?

It is essential to regulate the children's situation in order to avoid conflicts in the future. This can be done amicably through a parental measures agreement or through contentious proceedings in which the final decision is made by a judge.

In any case, the following aspects must be considered and regulated:

Child custody

Custody may be shared or sole. The first type of custody is the most common in Spain and, in cases of sole custody, it is more frequently awarded to the mother.

If the parents cannot agree on the type of custody and have to go before a judge, the judge will assess the suitability of each parent, the children's relationship with each parent and the level of conflict between the two parents.

Contact and communication arrangements

If sole custody is granted, contact arrangements must be established for the parent who does not have custody. In both sole and shared custody cases, communication arrangements will be established, for example, so that the children can speak to the parent they are not with at that particular time, at a specified time of day.

Child maintenance

This is an amount of money paid by the parents to cover their children's needs: schooling, clothing, food, travel, medical treatment, etc. This maintenance must be paid until the children become financially independent.

When calculating child maintenance, it is essential to assess factors such as the children's expenses, the parents' financial capacity and the family's financial situation prior to the separation.

Dissolution of jointly owned assets

If a couple is not married, there is no matrimonial property regime applicable and, therefore, there is no such regime to dissolve. Any properties they jointly own will have to undergo termination of co-ownership. This allows the jointly owned property to be allocated and settled. If, for example, they have purchased a property, they may agree that one of them keeps the property and pays the other for their share, or that it is sold to a third party and the proceeds are divided between them. If they cannot reach an agreement, they will have to go before a judge to terminate the co-ownership.

The process of separating without being married when there are children

As mentioned above, there are two ways of carrying out this procedure:

• By mutual agreement. In other words, both parents agree on how to handle the separation as an unmarried couple with regard to their minor children. The document must subsequently be approved by a judge. This is because, where minor children are involved, a court must ensure that their rights are protected.
• Through contentious proceedings. There are cases in which the parents cannot agree when drawing up the parental measures agreement as an unmarried couple. In these situations, the judge, always prioritising the best interests of the child, will determine matters such as custody, contact arrangements and the use of the family home.

Whether the children are minors or any of them has a disability, the involvement of the Public Prosecutor's Office is mandatory. In any case, depending on the circumstances, the steps to follow when separating without being married vary slightly. Let us take a closer look.

Separation with children by mutual agreement

In this case, it is advisable to seek the assistance of a lawyer specialising in family law to draft the parental measures agreement. Its purpose should be to reflect the wishes of both parents in such a way that it can be approved by the judge. It should not be forgotten that the judge has the final say and, if they consider that the child's rights are not adequately protected or that either parent is unfairly disadvantaged, they may amend it.

Contentious separation with children

In this situation, the parents cannot reach an agreement and refer the case to a judge, who will make the decision. One of the parents, with the advice of their family lawyer, will draft a proposed parental measures agreement. The judge will summon the other parent to appear in the proceedings and present their arguments and, on the basis of the available evidence, will issue a final decision by way of a judgment.

Frequently asked questions about separation with children when the parents are neither married nor in a registered partnership

Below, we answer some common questions relating to this type of separation:

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

The main difference is that there will be no matrimonial property regime linking you to your partner. Therefore, there will be no need to dissolve one. Furthermore, it is also uncommon for judges to award compensatory maintenance to the parent who is in a weaker financial position.

How are assets divided when an unmarried couple separates?

As mentioned above, where a couple is not married, there is no matrimonial property regime to dissolve. Therefore, assets belonging solely to one of the parents cannot be claimed by the other.

Assets that are jointly owned, on the other hand, are subject to the rules governing the termination of co-ownership. This can be carried out by selling the property to a third party and dividing the proceeds, although it is more common for one of the parties to buy the other's share.

What happens if there is a joint mortgage?

With regard to separation between unmarried parents with children and a mortgage, the obligation to continue repaying the loan remains equally shared as long as the property continues to be jointly owned. If the property becomes the sole property of one of the parents, the bank should be consulted to determine whether it will agree to one of the original borrowers assuming sole responsibility for the mortgage.

If you would like more information, request a consultation with any of our specialist divorce lawyers.