Types of divorce and process

Divorce is one of the judicial processes that Spaniards most frequently request. Therefore, we want to dedicate this article to talk about it, starting with the definition of the concept, continuing with the types currently contemplated by law, and ending with a detailed explanation of the process that must be carried out for it to be valid.

Definition of divorce

Divorce is, in short, the dissolution of the marriage bond that two parties entered into at a certain point in their lives. In this way, the spouses have the possibility, if they wish, to remarry by civil means. The only condition that the law establishes to be able to execute said dissolution is that three months or more have elapsed from the moment in which the matrimonial union took place.

The execution of the divorce process implies that both parties lose the rights and obligations that were generated at the time they decided to form a marriage between them, that is, everything related to widow’s pensions, inheritance rights, the obligation to provide food, the duty of fidelity and help, etc.

Of course, the signing of the divorce agreement does not exonerate either of the two parties from their obligations regarding the children if there are any since they do not derive from the marriage union, but from the family relationship. In fact, these obligations are valid even if there has not been a marriage between the two.

The separation

Despite the fact that, at this time, separation is not an essential fact in the processing of any divorce process, the reality is that many couples still take advantage of this modality and, therefore, it seems appropriate to mention it .

In general terms, the only difference between divorce and separation is that, in the case of separation, there is only a suspension of the life in common maintained by the spouses, not the total dissolution of the bond that unites both. In addition, reconciliation, for legal purposes, nullifies the points that had been agreed in the separation agreement. It must be said that, for said reconciliation to be effective, those involved must inform the judge who is handling the case.

Both the requirements and the procedure to be followed are exactly the same in the case of divorce and separation since the law does not make any distinction between the two. Since this procedure is detailed later, we will not emphasize it at this time.

Types of divorce

At the moment there are two different types of divorce: the contentious one and the one by mutual agreement. In any case, the only requirement contemplated by law is that at least 3 months have elapsed since the marriage was contracted. It is true that, previously, the law contemplated the assumptions that gave rise to the execution of the procedure, but as of the entry into force of Law 15/2005 to which we already referred previously, these were eliminated and only the will of one of the parties.

Divorce by mutual consent

The process by which a mutually agreed divorce is carried out is currently very fast, simple, and inexpensive for both parties. This is mainly due to the fact that both spouses reach an understanding of all the terms related to the case, which is why a court ruling is not necessary.

In general, terms, for a Divorce to be carried out by mutual agreement, the following conditions must be met:
- Both spouses must agree to dissolve the marriage bond that unites them. This fact must be included in the existing regulatory agreement and be ratified before a competent judge.

- It is mandatory to establish a regulatory agreement that specifies in full detail the consequences that the execution of the divorce will entail, that is, everything related to the distribution of assets that were previously shared, how relationships with the children are established if is that there are, maintenance pensions, etc.

Contentious divorce

A contentious divorce is one in which one of the spouses requests it without the prior consent of the other, which makes it essential to present a contentious claim through the courts. Obviously, since there is no common agreement between the two, said demand is not accompanied by the regulatory agreement, so it will be the judge who, through the pertinent divorce judgment that he issues, determines the details related to the situation in which it remains each spouse.

As we have already commented previously, either of the spouses can file the divorce claim by contentious means without having to allege any cause. Of course, as in all cases, it is necessary that the three months have elapsed from the moment the union occurred, which we have already referred to previously.

This way to get a divorce is, obviously, much more expensive in economic terms since each spouse will need a different lawyer. In addition, it is also more complex and tends to take much longer than those that are carried out by mutual agreement.

The divorce process

Depending on the type of divorce that is carried out, it will be necessary to carry out one procedure or another.
The necessary process for mutually agreed on divorces
The procedure to be followed to execute a divorce by mutual agreement is quite quick and simple. In the first place, this is considered initiated once both parties proceed to file the relevant divorce claim, which must be accompanied, obligatorily, by the regulatory agreement that establishes the conditions and the situation in which they will both parties will remain once the dissolution is effective, the marriage registration certificate and, if they exist, the literal birth certificates of the children.

This petition for divorce by mutual consent can be filed by only one of the spouses provided that the condition is met that the other has shown their consent. The simplicity of this form of divorce has ensured that the entire process can be carried out in a few days from the filing of said claim. In addition, both can be represented by a single attorney.

The necessary process for contentious divorces

A contentious divorce requires a much longer, laborious and expensive process as both must hire a lawyer and a separate attorney. In any case, this is considered initiated at the moment in which one of the spouses files a demand for divorce without the consent of the other.
This demand must be accompanied by the birth certificate of the children, if any, by the marriage certificate and, ultimately, by all those documents that, when the time comes, are useful to prove the economic situation of both parties. In the same way, the suitability of each one to carry out the exercise of guardianship and custody of the children must also be justified.

Once one of the parties files the petition for divorce, the other has to answer it. At that time, the judge will proceed to summon the spouses at a hearing or appearance in which the evidence provided by both will be analyzed. Based on this fact, the judge will determine, through a court ruling, who owns the custody and custody of the children, the use of the family home, the visitation regime of the spouse to whom custody has not been granted and will establish the amount of the compensatory pension and/or alimony.

In the event of disagreement, the judgment handed down by the judge may be appealed by either party by filing an appeal before the Provincial Court. If this happens, there will be no recourse to the subsequent sentence issued by this judicial body, which will be considered as final and will oblige the spouses to comply with it.
We hope that we have been helpful in solving any doubts you may have about the types of divorce currently contemplated by law in Spain and how is the procedure to be followed in all cases. If you have any doubts in this regard, do not hesitate to contact a lawyer specialized in this type of case.