Divorce is the civil instrument by means of which the members of a marriage can put an end to it, dissolving the bond that unites them and determining how the common patrimony they have is distributed. As well as the way in which the family relations of the members of the family will be articulated in the future.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
Of course, as everyone knows, at present, the legal system provides for the possibility of terminating the institution of marriage, so that this union is not constituted as a perpetual bond, so that the spouses, if the case arises, for whatever reason, no longer wish to maintain this marital union, may resort to any of the institutions provided by the legal system, for the purpose of formalizing the cessation of life together of the members of the marriage, as well as the family and property effects arising therefrom.
In the event that, for whatever reason, the spouses, by mutual agreement or by unilateral will of one of them, decide to terminate the sentimental and personal relationship that unites them, this reality must be legally reflected through one of the legal institutions that the law provides for this purpose, which are:
In the legal separation, the spouses formalize their cessation of life in common, and regulate the way in which their personal relations will be governed from now on, and, also, the form in which they will divide the patrimony that they had in common. In this case, the legal separation supposes therefore a step or intermediate stage to the divorce, in which the members of the marriage formalize the rupture of their sentimental bond and of cohabitation, but they do not proceed to dissolve and extinguish definitively the marriage, leaving thus ajar the door to an eventual reconciliation.
On the contrary, by means of divorce, the spouses put an end to their marriage, dissolving to such effect the marital bond that united them, and as a consequence, regulating and determining how the family relations will be governed from that moment on, as well as the way in which the patrimony that they have in common will be distributed.
Of course, the answer to this question is in the negative, since legal separation and divorce are two different legal concepts, which have different legal consequences.
Thus, in the case of the legal separation, the same one, when being agreed in a judicial process or before Notary, implies the legal recognition of a new situation between the still spouses, in which a cessation of the cohabitation or of the life in common between the spouses takes place, and from which likewise, other consequences in the personal and patrimonial sphere of the same ones can be derived (as for example the attribution of the use of the family house to one of them, in certain cases, the extinction of the matrimonial economic regime, the distribution of goods, rights, loads and pre-existing debts, the destination of animals of company if there were them, etc).
However, in the case of legal separation, the marriage bond continues to exist, so that the door is left open to an eventual reconciliation between the spouses (which also implies that either spouse cannot remarry a different person).
On the contrary, in the case of divorce, the marriage bond will be definitively dissolved, which will necessarily imply the extinction of the matrimonial property regime, the definitive distribution of the assets, rights and liabilities of the common estate, as well as the possibility that any of the former spouses may remarry another person.
Of course, the answer to this question will again be negative, since both figures or situations are not at all the same.
Thus, again to reiterate that, in the case of the legal separation, the same, when being agreed in a judicial process or before a Notary, implies the legal recognition of a new situation between the still spouses, in which there is a cessation of the cohabitation or of the life in common between the spouses, and from which also, other consequences in the personal and patrimonial sphere of the same ones can be derived (as for example the attribution of the use of the family house, in certain cases, the extinction of the matrimonial economic regime, the distribution of goods, rights, loads and pre-existing debts, the destination of animals of company if there were them, etc).
On the contrary, in the case of de facto separation, this is the situation that occurs when the spouses decide to put an end to their sentimental relationship and, therefore, proceed to cease their cohabitation (so that, in general, they "no longer live together"), but without taking any additional legal action, that is, without going to a judicial process or to a Notary Public to legally formalize their separation or divorce.
In such a case, each of the spouses initiates an independent life project, but without giving legal recognition to this new reality, with which, their personal and property relations during this new situation will be governed by the agreements reached between the parties, but from a legal point of view, the marital bond will continue to exist, as well as the matrimonial property regime that they had (which can only be legally extinguished, in certain cases, if this de facto separation is prolonged in time and finally, one of the spouses requests it).
In any case, in view of the above, it seems reasonable to affirm that it does not seem to be very advisable to prolong a situation of de facto separation in excess, so that, when it occurs, the most advisable thing to do is for the spouses to resort to the corresponding legal process or channel to adapt their legal situation to their new personal reality.
As it has just been indicated, the divorce is the legal institution that allows to put an end to the marriage, thus dissolving the matrimonial bond that united the spouses up to the date. Thus, through the divorce, the former spouses formalize the rupture of their personal relationship, and manage to regulate and determine, in a suitable way, how the patrimony they had in common is distributed between them, as well as the way in which the family relations between them will be regulated, especially, in the case that there are children in common.
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:
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 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:
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.
The spouses must go to the notary with their original and valid DNI. If either of them is a foreigner, then he/she must present his/her original and valid passport.
The lawyer must present his or her original and valid ID card, as well as his or her professional membership card to the notary.
The date of issuance of such certificate may not exceed 3 months.
Document that sets out the agreements between the ex-spouses, for the purpose of determining all those personal and patrimonial aspects that must be resolved with the extinction of the marriage, such as the attribution of the marital domicile, the distribution of the goods and rights that make up their patrimony, the distribution of debts or existing charges, the fixing of a compensatory pension, etc. This document must be drafted by the lawyer or lawyers hired by the former spouses.
It is required and must be provided before a notary so that the notary can verify that there are no minor children.
It is required and must be provided before a notary so that he/she can verify his/her competence to authorize the requested divorce.
