In 2005, Spain went through a legal reform that made it easier and faster to request a divorce. The Civil Code and Law of Civil Procedure were amended in regard to separation and divorce by Ley 15/2005, de 8 de julio. This is referred to as the “Divorcio Express,” which was a divorce by mutual agreement or uncontested divorce. These modifications were meant to improve the divorce process in order to save time and money. The divorce will usually be final just 1-2 months after starting the proceedings.
One of the main features of this new law is that it eliminated the requirement of compulsory separation prior to divorce. Although a couple may still choose to separate first before getting a divorce, this has now become an optional step. Another major change was that spouses no longer have to state a reason for requesting a divorce; they simply have to state their intention to end the marriage. Before this law came into force in 2005, a specific cause had to be given for a divorce to be granted.
In order to request an “express divorce,” the following conditions must be met. First, at least one of the spouses must be domiciled in Spain. Second, the marriage must have lasted at least three months. However, there is a rare exception in which a divorce may be filled earlier if it is to protect the children or spouse from abuse (according to Article 81.2 Civil Code, by referral of article 86). Prior to these changes, a divorce could not be requested before one year of marriage. Third, there must be a mutual agreement that describes how the marriage will be dissolved. This must be drafted by a lawyer and presented to the judge in writing. In the event that these requirements are not met, the spouses may still divorce but they must go through a different process, which is longer and more expensive.
The documents necessary for an Express Divorce are as follows: the marriage certificate from the Civil Registry, the certificate of registration (domicile) of at least one spouse, and the financial documentation, such as bank certificates, public deeds to property, mortgage payments, etc.
There are two different ways of obtaining an express divorce: by a judicial procedure or before a notary by public deed.
In order to obtain an express divorce by judicial procedure, the couple must first hire a lawyer in order to assist them with drafting the mutual agreement. Then, they must negotiate the conditions of their divorce that will be in this agreement, including custody of the children, alimony paid for maintenance of the children, a compensatory pension for the spouse who’s financial situation worsens because of the divorce, allocation of the family home, and the separation of assets (liquidation of the economic regime). The couple submit a petition to divorce with their agreement attached and must appear in front of a judge represented by a procurator and assisted by a lawyer in order to express their consent to the agreement. If there are no children and there will be no liquidation of the economic regime, the couple pay submit a public deed certifying that there are no children instead of an agreement. Since an agreement has already been reached, there will be no trial and the spouses do not need separate legal representation; they may be assisted by the same lawyer. After this, the judge will issue a resolution that dissolves the marriage, and it will be registered in the civil registry.
In 2015, the Ley 15/2015, de 2 de julio, de la Jurisdicción Voluntaria introduced a new way of acquiring an express divorce, the “notarial divorce,” in which the spouses would simply need to appear before a notary who would grant the public deed of divorce. This is only available to couples who do not have minor or incapacitated children. In order to obtain a notarial divorce, the couple must appear before the notary to sign the paperwork and obtain the public deed. If there children who are not minors but are still affected by the divorce, they must also appear before the notary in order to sign with their parents. When the couple requests a divorce before the notary, they must still be assisted by a lawyer. The lawyer will prepare the agreement and present it before the notary. The notary will then issue a public deed of divorce by mutual agreement, thus dissolving the marriage.
The marriage will be dissolved once the divorce is granted. Additionally, the economic regime of marriage is also dissolved. This means that some rights are lost, such as inheritance between spouses and the rights of joint ownership.
In conclusion, the express divorce can be done in only a few months by agreement between spouses. It is the fastest, most convenient, and cheapest way of dissolving a marriage.
Article by Luz Solano Florez