SEPARATION OF SPOUSES

In Spain, the term "separation" is used in two different ways:

De facto separation

A husband and wife may decide to live separate and apart from each other, though they still continue with their marriage. The marriage can only be terminated by means of divorce or death of one of the spouses.

It is not the judge who intervenes in the separation of the spouses, but they decide to put an end to their cohabitation, whether temporarily or definitively.

De facto separation may also occur in case of desertion; when one of the spouses has abandoned the family dwelling. The abandoning spouse may be deemed guilty of committing a crime for abandoning the spouse and children.

If you are willing to separate from your spouse, it is advisable either to file a petition for judicial separation (preferably by mutual agreement) or reach an agreement in writing that covers the following: custody of children and rights of visitation, as well as financial support of the spouse and any other financial terms.

These terms should be drawn with the aid of a Spanish Lawyer. The document may serve to establish the grounds required for obtaining divorce.

Judicial separation

a) Separation by mutual agreement.

The spouses may separate by mutual agreement when they have been married for three full months. In this case the spouses agree to live separate and apart from each other.

Whenever the spouses ask the judge for a legal separation order, a proposal of governing convention shall be attached to the petition.

The court procedure for separation by mutual agreement is quick and simple.

b) Litigious separation

In this case one of the spouses files a petition for judicial separation after having been married for three full months. It is not necessary to wait for this delay when there is a proved danger for life, physical integrity, liberty, moral integrity or sexual liberty or indemnity of the petitioner.

The court procedure for litigious separation is long and complex. Depending on the circumstances of the case, before starting the separation court proceedings, temporary measures regarding the matrimonial property, custody of children, support, alimony and other must be set up.

PETITIONING FOR DIVORCE OR SEPARATION

A petition for divorce, as well a petition for separation, can be filed with the court on the following grounds:

The spouses may divorce by mutual agreement when they have been married for three full months.

Whenever the spouses ask the judge for a divorce order, a proposal of governing convention shall be attached to the petition.

One of the spouses files a petition for judicial separation after having been married for 3 full months. It is not necessary to wait for this delay when there is a proved danger for life, physical integrity, liberty, moral integrity or sexual liberty or indemnity of the petitioner.

It is not necessary to have been legally separated for a certain period of time to be able to file for divorce, as it used to be before the amendment of the relevant legislation.

Types of divorce

a) Uncontested divorce

The court procedure to get divorced by mutual agreement is quick and simple. The petition for divorce shall be filed together with the governing convention.

b) Contested divorce

In this case the divorce petition is filed by only one of the parties to the marriage and the court procedure is long and complex.

Depending on the circumstances, before starting the divorce procedure, provisional measures may be set up in order to make property settlement, child custody, spousal support and alimony arrangements.

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