Separation and divorce
Spanish courts have jurisdiction to hear cases of separation and divorce in many determined cases. In this article, we will give consideration to cases in which Spanish courts have jurisdiction and in which Spanish Law is applicable.
Under Spanish Law, a judicial separation may be declared whatever the manner in which the marriage was formalized:
1- At the request of both spouses or at the request of one with the consent of the other once three months from the marriage have elapsed. The application will be accompanied by a proposed agreement drafted as per the requirements of article 90 of the Civil Code.
2- At the request of one of the spouses after three months from the date of the marriage although in the event of apparent risks regarding the physical integrity, liberty or moral and sexual freedom of the applicant, the couple’s children or of either of the spouses, the expiry of the term of three months is not necessary.
The spouses may also separate by mutual agreement after the expiry of the term of three months from the date of the marriage in which case a proposed separation agreement must be filed in Court or before a Notary (as long as the couple do not have minor children who are still dependent on them) in which in addition to their express wish to separate, the effects of their separation are regulated in accordance with the requirements established pursuant to article 90 of the Civil Code.
In accordance with article 90 of the Civil Code, and in the event of mutual consent, the proposed separation agreement must contain dispositions regarding the following matters:
■ The arrangements for looking after the couple’s children if they are still under parental authority, the actual exercising of the said parental authority and the arrangements concerning the custody of the children and visiting rights.
■ If considered necessary, the visiting rights and communication of the children with their grandparents always bearing in mind the best interests of the children.
■ The assignment of the use of the family residence.
■ Each spouses contribution to maintenance and the basis for the updating of the said contributions and guarantees if necessary.
■ The dissolution of the spouses’ matrimonial property regime if pertinent.
■ The financial adjustment due to one of the spouses pursuant to article 97 of the Civil Code if pertinent.
What legal effects does the separation of the spouses have? The judgement declaring the spouses’ separation produces the end of the spouses’ cohabitation and the end of the possibility of either spouse’s assets being held liable for what previously were joint matrimonial financial liabilities.
What are the differences between separation and divorce? The fundamental difference is that a divorce terminates definitely the marriage and both spouses are free to marry again whilst in the case of a separation, the spouses are still actually married. In the case of separation, it is possible for the spouses to reconcile by means of a declaration filed before the judge who heard the initial application for judicial separation. However, in those cases in which there are grounds to do so, the measures adopted with regard to the couple’s children will be maintained. Notaries may also process deeds of reconciliation since the enactment of the Law of Voluntary Jurisdiction of 2015 especially in urgent cases such as when the death of one of the separated spouses could happen as the separation could affect some financial rights such as a widow’s pension.
In the case of divorce, the effects of the declaration of the dissolution of the marriage will be produced once the judgement or decree is definite or from the moment in which both spouses sign the deed of divorce before the Notary. However, the divorce will not prejudice third parties until it is registered in the Civil Registry.