Divorce before a notary

At present, our legal system does not regulate divorce as a causal institution, so that the spouse or spouses who wish to divorce will not have to allege any cause or justify their will to divorce on any specific grounds, so that simply expressing their will to divorce, through any of the means provided by law, will be sufficient.

However, from a formal point of view, it will be necessary that the circumstances or requirements are met:

• Divorce can only be filed after three months have elapsed since the marriage was entered into.
• That both spouses agree to formalize the divorce before a notary public
• There are no unemancipated minors or children of legal age with legally modified capacity who are dependent on their parents.
• That the spouses agree on a regulatory agreement that determines the form in which their common patrimony will be distributed. For this purpose, the assistance of at least one practicing professional lawyer is mandatory.

Thus, if these requirements are met, it will be possible to formalize the divorce before a Notary Public by means of a public deed, which, as will be seen, has many advantages.

Traditionally, in our legal system, the only way to formalize the divorce was through the courts, so that the spouse (or spouses jointly, in case of divorce by mutual consent) who wanted to file for divorce, had to go to court and file a divorce action against his or her spouse.

However, at present, in addition to the judicial route, for some years now, the law also allows, in certain cases, to articulate the divorce by a faster, simpler and less traumatic way, such as the divorce before a Notary Public, which we will try to explain in the questions that are being developed.

As just indicated, if the requirements set forth in the previous question are met, it is possible to formalize a divorce before a Notary Public, which can have great advantages in relation to the judicial process, among others, for the following reasons:

• In the first place, because without a doubt, the most probable thing is that the whole process is articulated in a much shorter time, since at present, due to the lack of personal and material means of the Administration of Justice, the judicial route will take many months, even years, whereas if we resort to the notarial route, in a few days or weeks we will already have our divorce formalized, with which, a question that usually generates great uneasiness between the parts will be solved in a very short period of time.
• Secondly, because very probably, to formalize a divorce before a Notary Public will be a much less traumatic and hostile process than to raise it by the judicial route, because if the parties reach an agreement, and opt for the notarial route, the formalization of the dissolution of the marriage will take place in a calm and pleasant space, as it is a notary office, and not in a Court, in which we will usually find scenarios of conflict that can add unnecessary tension to the process.
• And also, because by resorting to the services of a Notary, for a reasonable price, we will have the advice of a public official, specialist in Law, who will be able to watch over our legitimate interests, and also because we will be able to take advantage of the occasion to carry out additional procedures that are of interest to the former spouses, such as formalizing a dissolution of condominium (leaving the former common house in the hands of only one person) or for example, formalizing a new will adapting its content to the new personal reality of the former spouses.

In this case, the legislator considers that, if there are minor children in common, it is necessary for the divorce to be carried out through judicial channels, since the Public Prosecutor's Office will also be involved, so that both the Judge and the Public Prosecutor's Office can adequately watch over the best interests of the minor or minors (or incapacitated children of legal age).

Undoubtedly, there is no single answer to this question, because depending on the specific situation of each marriage and the claims of the parties, the answer will be one or the other.

However, without a doubt, if the claims of the parties are reasonable according to their specific circumstances of the spouses (both from the personal and patrimonial point of view), undoubtedly the solutions agreed and agreed by mutual agreement will always be better than those that end up being imposed by a judge in the framework of a conflictive process.

Therefore, if the parties can opt for the mutual agreement route, which is a requirement to be able to agree the divorce by deed before a Notary, this will undoubtedly be much better for the parties in most of the occasions, since the process will be much less traumatic and, also, money will be saved, since the cost of the intervention of two lawyers in a contentious process will be much higher than the intervention of one or two lawyers in a process of mutual agreement.

If you want to formalize the divorce before a notary, if you meet the necessary requirements for this that have been exposed in previous questions, you will simply have to agree this way with the current spouse.

Once this is done, both parties must agree if they prefer to be assisted by the same lawyer, or, on the contrary, that each one is represented by a different lawyer. Once this question is resolved, the spouses should hire the services of a lawyer of their trust to represent them jointly, or if necessary, a lawyer for each of them.

Once you have your lawyer or lawyers, you should negotiate by mutual agreement the content of the regulatory agreement, and once you have reached an agreement in this regard and have drafted the corresponding agreement, you can contact the Notary of your choice in order to set a date and time for the signing of the divorce deed.

In accordance with current legislation, the Notary Public of the place where the last common domicile was established or, as the case may be, the place of the current habitual residence of either of the applicants, will be the competent Notary Public to authorize the divorce deed.

Therefore, the parties must choose a Notary Public of their confidence, among those having jurisdiction in the indicated territorial area, which shall be accredited by means of the corresponding census certificates.

The regulatory agreement is the instrument in which the pacts or agreements reached by the spouses in relation to the dissolution of their marriage are embodied. Thus, the normal thing is that in it there are included agreements relative to:

• The use and enjoyment of the marital home, being able to even agree on a dissolution of the condominium, for the purpose of determining which spouse keeps the property.
• The distribution of household goods.
• The distribution of the ownership of other assets that they may have (such as second homes, vehicles, financial assets, balances in current accounts, etc.).
• The recognition and quantification, if applicable, of any economic benefit in favor of one of the spouses.

This is so, since the Catalan civil law establishes that, in case of divorce, the spouse whose economic situation, as a result of the breakup of cohabitation, is more damaged, is entitled to a compensatory benefit that does not exceed the standard of living enjoyed during the marriage nor that which can be maintained by the spouse obliged to pay.

In order to determine the amount and duration of the benefit, special consideration must be given:

In view of the above, if, in view of the circumstances of the parties, the payment of this compensatory benefit is appropriate, in the case of a divorce by mutual agreement, the spouses must agree on its recognition, as well as its amount and duration, for the purpose of including it in the regulatory agreement to be agreed upon.

On the contrary, if there is no agreement on this, the notarial process cannot be used, and the parties will be forced to file their divorce in a scenario of judicial conflict.

Indeed, the law determines that in order to be able to sign the divorce deed before a Notary Public, the parties must be assisted by at least one lawyer.

Thus, if the parties so wish, they may agree to be represented by a single lawyer to assist them both or, if they prefer, they may each appoint a different lawyer to assist and advise them individually.

The spouses must attend, as well as the lawyer or lawyers advising them.

Once the deed of divorce has been signed, the Notary shall communicate it to the Civil Registry, so that the dissolution of the marriage bond may be recorded therein.

When this has taken place, the Civil Registry will notify to the Notary's Office a certificate of the marriage in which this dissolution is already recorded, which will be attached to the authentic copy of the deed that will be finally delivered to the client, so that it is already on record that the whole process has been satisfactorily completed.

Likewise, if the divorce deed contains agreements relating to real estate(such as, for example, the dissolution of a condominium to assign the entire ownership of a house to one of the former spouses), it may be sent to the corresponding Property Registry for the corresponding registrations to be made.

Once the Civil Registry notifies the Notary's Office of the dissolution, then the Notary's Office will be able to definitively close the authentic copy of the divorce deed, in which it is stated that the divorce has been registered in the Civil Registry.

However, on the same day of the signing of the notarial deed of divorce, the notary's office itself will send the former spouses a simple informative copy of the deed to their e-mail addresses.