It is complicated to start this post with the following statement: "Marriages for life are already a thing of the past". Although marriage has been conceived as a union between two people, today, independent of sex, which is formalized by an act or rite, with some legal formalities that is recognized by law as a family.
However, when a couple does not work, for whatever circumstances, the coexistence becomes difficult, the conversations end in arguments, the level of understanding is null, the things that united that couple no longer exist, unless there are children and assets in common, the most convenient will be to divorce and always do it in the best possible way and why not the fastest, no doubt, many headaches will be avoided, and without realizing things will be back on track to start a new chapter of life.
It is necessary, to mention that since 1981 the Divorce Law was approved in Spain, however, with the reform of the Civil Procedure Law 1/2000 of 2005, extended by the new Law 15/2015 of Voluntary Jurisdiction, a quick divorce was approved, currently known as express divorce, in procedural law it is the so-called divorce by mutual agreement, which is established in art. 777 Civil Procedure Law (LEC).
In the past, getting a divorce was more difficult than preparing a wedding, besides, it was necessary to give explanations about the reasons why the spouses wanted to terminate the marriage, now it is only necessary to have the will to get divorced, and in about three months we will have the sentence that ends the marriage.
At this point, it is necessary that you know the conditions to go to the Express Divorce. The first thing you should know is that no marriage can be terminated until 3 months after its celebration, however, as we all know, every general rule has its exception, that is why the 3 month term will not be necessary when the plaintiff spouse proves some circumstance that endangers his life, freedom, physical integrity, moral and sexual indemnity of this or of the children in common.
After this 3 month period, an express divorce may be filed if the following conditions are met:
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There must be mutual agreement between the interested parties (spouses), or one of them must want to initiate the procedure with the consent of the other.
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Jurisdiction to hear the case will correspond to the Court of the last conjugal domicile or that of either of the petitioners, that is, as long as it is in Spanish territory.
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It is necessary to present with the divorce petition a regulatory agreement (drafted by your Lawyer), understanding this as the agreement reached by both parties in which they freely express their decision to end their marriage, and in which they regulate all the aspects and legal consequences that the divorce entails, being the following:
1. The care of the children. Everything related to the exercise of the parental authority, the guardianship and custody, communication and visitation regime with the parent who does not live habitually with the children will be regulated.
2. The manner of deciding and sharing all aspects affecting their education, health, welfare, habitual residence and other matters relevant to the children.
3. The attribution of the use of the family home, who remains living in it, and of the trousseau, as well as the establishment of the alimony for the children.
4. The liquidation of the economic regime of the marriage, in the event that the distribution of assets is appropriate.
5. The compensatory pension that could correspond and be recognized to one of the spouses, when applicable.
PROCEDURES TO BE FOLLOWED IN AN EXPRESS DIVORCE
Now let's see, what are all the steps that must be followed to initiate and carry to completion the express divorce proceeding:
1. In the first step, a Lawyer and Attorney will be sought, as it is a mutual agreement, the parties may be represented by the same Lawyer and Attorney.
2. The Lawyer will draft the Regulatory Agreement, which will contain the aspects that were mentioned previously, this document will have to be signed by both spouses.
3. Once the agreement is signed, we will have to obtain a power of attorney in favor of our Lawyer and Procurator, which can be obtained in two ways:
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The cheapest and simplest way is to sign the power of attorney at the Court. It is recommended to do so on the same day that the parties are summoned to the Court in order to ratify the lawsuit and the agreement. This type of power of attorney, which is made before the Court Clerk, is called apud acta.
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The power of attorney may be granted before a Notary Public. Its price is 40/50 euros.
4. At this point, the lawsuit will be presented, together with the regulatory agreement, attaching the following documents:
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Literal marriage certificate. This can be requested at the Civil Registry of the place where it was celebrated.
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Birth certificate of the children, if any, which can also be requested at the Civil Registry.
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Some courts require the presentation of a certificate of census registration or proof of the domicile or residence of the married couple.
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The proposal of the Regulatory Agreement.
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The agreement reached in family mediation, if any.
5. The suit shall be filed in the Court of First Instance or Family Court, if any, of the last common domicile or in the domicile of either of the spouses, if they are already living separately.
6. Once the lawsuit is admitted, the spouses must ratify the lawsuit and the settlement agreement filed. This happens within one to two weeks of the filing of the lawsuit. The spouses can be summoned together or separately, being more convenient to be summoned separately to avoid possible conflicts. If any of the spouses does not ratify on the content of the lawsuit and the regulatory agreement, the Lawyer of the Administration of Justice (LAJ) will proceed to file the process.
7. Next, in the case that there are minor children, the Public Prosecutor's Office will also intervene to determine if the Regulatory Agreement watches over the interests of the minors and if it is considered pertinent it will be possible to hear the minors if they have sufficient judgment. In the case that it is considered that some aspect is missing, a term of 10 days will be given to propose a new Agreement, on the points that the Court has not approved. Once the new proposal is presented or if the term elapses, and we have not presented it, the Judge will resolve as he considers convenient and pertinent in attention to the necessities and fundamental interests of the family. In the procedures of divorce of mutual agreement it is not necessary to hear the minor children.
8. The Judge dictates sentence declaring the divorce (in an approximate term of 2 to 3 months), which is communicated ex officio to the Civil Registry for its inscription. The interested parties will have to keep what is called "testimony of the Sentence", which is the Sentence with the seal of the Court and the signature of the Lawyer of the Administration of Justice. This document should be sent to you by your Lawyer or Procurator, otherwise, it could be requested directly at the Court that heard the case.
EFFECTS OF DIVORCE
The main effects of divorce are as follows:
1. The marriage is dissolved, that is to say, the legal effects of the bond cease. The ex-spouses can remarry once the divorce is final, and once the marginal note appears in the literal Certificate of Birth.
2. The marital status is modified, we will go from being married to being divorced.
The matrimonial property regime is dissolved, although it is not liquidated, that is to say, the assets can be distributed at that moment, it can be done later.
4. The former spouses shall not have the right to the inheritance, to the pension, nor to the patrimony that each one constitutes after the divorce is signed.
EXPRESS DIVORCE BEFORE THE LEGAL COUNSEL OF THE ADMINISTRATION OF JUSTICE
It will be competence of the Lawyer of the Administration of Justice (LAJ) of the Court when there are no minor or incapable children. This one after the ratification of the demand and the regulatory agreement, will agree the divorce by means of decree.
In the event that the LAJ considers that in the Regulatory Agreement one of the spouses comes out harmed in a serious way or that this harms the children of legal age or the emancipated ones, he/she will file the process, and the spouses will have to go to the Judge. Once the decree of divorce is notified, the LAJ will send it ex officio to the Civil Registry for its inscription.
EXPRESS DIVORCE BEFORE THE NOTARY
From the entry into force of Law 15/2015, of Voluntary Jurisdiction, it is possible to divorce before a Notary, being this a novelty that in my opinion is faster than going before a Judge. It will be carried out by means of a Public Deed before a Notary.
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First of all, the spouses must be assisted by a lawyer (it can be the same for both).
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Secondly, there must be a mutual agreement of the spouses, that is to say, the will of the parties to divorce. In this procedure it is contemplated that the couple does not have minor or judicially incapacitated children. It can also be carried out if there are children of legal age or emancipated minors, in this case, the children will have to give their consent before a Notary, with respect to the aspects that affect them, if they are studying, do not have their own income and still live in the family home.
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Thirdly, they will have to present the Regulatory Agreement that will be elevated to Public Deed.
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The spouses must appear before the Notary in person and must be assisted by their lawyer.
This divorce must be performed before the Notary Public of the last common domicile or domicile or habitual residence of either of the spouses.
The Notary, once the divorce deed is signed, will send it electronically to the Civil Registry for its registration.
Finally, the cost of the divorce before a notary is usually between 150 to 200 euros per spouse.
