Divorce By Mutual Agreement: Everything You Need To Know
Divorce by mutual agreement represents great advantages over a contentious divorce. In this way, in addition to being faster and cheaper, we will avoid possible damage during the process, especially in children.
The fault divorce has many advantages over the dispute. Indeed, it is faster, cheaper and much easier. In addition, it is much less “painful” for everyone, especially if there are minor children.
Divorce by mutual agreement
Divorce is a legal institution that allows the dissolution of marriage. However, it is not always essential that there is a judicial process and that a magistrate issue a divorce decree.
Indeed, in Spain a “notarial divorce” is already possible, that is, it is enough for the couple to go to a notary and, with the assistance of their lawyers, grant a deed detailing their will to divorce and their agreements or pacts.
In these cases, it is not necessary to initiate any procedure before any court. However, it is only possible in the event that there are no minor children.
In case of minor children, the divorce by mutual agreement must necessarily be processed in court. Likewise, it is mandatory to have the assistance of a lawyer and attorney. This is so since the Public Prosecutor’s Office must intervene and ensure that the interests of minors are protected.
Requirements for divorce by mutual consent
In accordance with Spanish law, a single requirement must be met in order to reach a mutually agreed divorce : that a minimum of three months has elapsed since the celebration of the marriage (art. 86 of the Civil Code).
However, we must bear in mind that this requirement is not always essential. Thus, should the continuation of the marriage pose a threat or risk to one of the spouses, it would not be necessary to wait these 3 months. But, of course, in this case we would no longer be talking about a divorce by mutual agreement.
On the other hand, as is logical, in order for a divorce to occur by mutual agreement, it is necessary that there is an agreement between the parties. If there isn’t, it is a contentious divorce.
What must be presented to the judge?
In addition to other documents, you must present a regulatory agreement to the court. This agreement is a document that sets out the agreements established between the spouses that are going to separate in relation to the following aspects:
- Custody, parental authority, the communication regime with minor children, etc.
- Use and attribution of the family home
- Alimony for children
- Compensatory pension, if it is the case.
- Liquidation of community property, if applicable.
For this, it is necessary to have the assistance of a lawyer who guides and watches over the interests of the divorcing parties and minors. Once the regulatory agreement has been drawn up and signed, a petition for divorce by mutual agreement must simply be filed with the court, providing the agreement and the necessary documents.
The judge will examine all the documentation to verify that they meet the requirements established by law. Subsequently, he will issue a judgment approving the agreement of the parties.
Likewise, if there are minor children, it is also necessary for the Public Prosecutor to issue a report on whether or not the measures of the agreement harm the children. That is, you must give your approval in relation to whether you look out for the interests of minor children.
Can the agreement be rejected?
Although the couple has freely reached an agreement, there are cases in which the judge can reject the claim and not issue a divorce decree. These are cases in which the regulatory agreement violates the law, harms the interests of minor children, or harms one of the spouses.
As you have seen, reaching a mutually agreed divorce means reaching a pact between the two of you. Furthermore, just any agreement is not enough. Indeed, it must be in accordance with the law and respect the interests of all parties involved, especially minor children.
Therefore, it is important to have a lawyer to guide, guide and advise us throughout the process. Also, we must not forget that divorce by mutual agreement has many advantages. Indeed, it is much faster (we will avoid several hearings before the judge), less expensive and, of course, less excruciating.
