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. However, 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

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.

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 seperation
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 fo 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.

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

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.

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.

The effects of divorce
Once the divorce is granted, the parties to the marriage can remarry legally. The parties will get immediately extinguished their initial inheritance and widow's pension rights, as well as those obligations directly derived from their marriage.

The divorced parents still keep their duties with regard to their descendants.

Legal requirements to get divorced in Spain
You may get divorced in Spain only if you comply with any of the following requirements:

If you and your spouse are Spanish residents at the time of filing for divorce.

If you and your spouse are Spanish nationals, in case of divorce by mutual agreement, wherever you are located.

Nullity of marriage

A marriage which is void never had legal existence, except for the spouse married in good faith and for the children.

A marriage may be declared void on the following grounds:

• When it has been celebrated under no consent,
• No age of consent,
• Bigamy,
• Incest,
• Marriage under duress,
• When certain formal requirements are not complied with (e.g. the marriage is not solemnised by the judge, the town mayor),
• When either party to the marriage did not validly consent to it in consequence of mistake,
• When either party has been condemned for being responsible or accomplice of the homicide or murder of their former spouse.

Notwithstanding, the Spanish Ministry of Justice (Ministerio de Justicia) may authorise those marriages between individuals aged over 14 years, those celebrated between collateral relatives and individuals condemned for causing their former spouses' death.

How to initiate the nullity procedure
A marriage is voidable by an annulment proceeding begun by the spouses, the Public Prosecutor or any other person who has any interest whatsoever in the matter.

In the event a marriage is induced by duress or mistake, only the injured spouse may begin the annulment procedure.

A marriage of a person under legal age may be avoided by action of his parents, tutors or the Public Prosecutor.

To initiate the annulment procedure, Spanish Lawyer and Agent to the lawyer (Procurador) is always required. The petitioner may ask for temporary measures to be taken.

Temporary measures to ensure financial security
During the divorce, separation or annulment procedures, temporary measures (medidas provisionales) may be adopted in order to maintain the status quo of the parties during the pendency of the action. Measures include custody, visitation, or child support.

There are two types of measures that can be taken:

Previous measures (medidas provisionales or provisionalísimas): These should be brought before beginning the separation, divorce or annulment procedure. Proof of urgency or necessity will be required.

Simultaneous measures (medidas provisionales or simultáneas): These should be brought together with the petition for separation, divorce or annulment of the marriage.

The Judge authorities shall determine both types of measures. The following aspects must be governed:

About children:

Temporary measures shall state custody of children, visitation schedule for the non-custodial parent and child support.

About family dwelling:

Temporary measures shall establish the attribution of the use of the family dwelling, which normally will be granted to the parent who gets the custody of children.

About family expenses:

Temporary measures shall establish the manner in which the spouses shall continue to contribute to family expenses. It shall be determined the alimony that shall be made by one of the spouses in favour of the other spouse during the litigation.

There is no legal tariff in Spain determining the alimony for each case; instead the Spanish judge authorities will determine such alimony based on the circumstances of each specific case.

After the court procedure, the alimony will be substituted by a compensation allowance.

The Spanish judge may grant the payment of the alimony or compensation allowance by establishing some precautionary measures, e.g. by freezing the salary.

About the matrimonial property regime

Until the sentence for the procedure of separation, divorce, or nullity of marriage is finalised, the matrimonial property regime will remain as it is. Notwithstanding the judge may establish any suitable measure to protect the matrimonial property during the court procedure.

Previous measures
Previous measures (medidas provisionales or provisionalísimas) can be filed before the Spanish courts. The plaintiff shall state the details of the parties, the circumstances under which these measures are brought and the specific measures that need to be taken.

Besides the suit, the plaintiff shall present the marriage certificate, birth certificates of the children and other documents necessary to prove that the said measures must be taken.

The parties will be summoned to trial if they do not reach an agreement about the measures brought, the judge will adopt those ones that he considers suitable, according with the circumstances of the case.

The previous measures will have no effect if no suit for separation is filed within 30 days since the judge determined them.

Simultaneous measures
Simultaneous measures (medidas provisionales or simultáneas) can be brought along with the separation, divorce and nullity suit, when no previous measures had been taken before.

If the parties do not reach an agreement when they are summoned to trial, the judge will determine what he considers fit according with the circumstances of the case. The court decision cannot be appealed.

The final sentence or judgment will contain any definitive measures, thereby terminating any simultaneous measures.

The procedure of separation, divorce and annulment of marriage
a) The procedure for marriage annulment, divorce or legal separation initiated by both spouses, acting in common agreement, or by one of the spouses with the other spouse's consent is faster and simpler than the litigious one.

Along with the claim the parties shall present the governing convention (convenio regulador), which is the contract that both spouses have agreed to establish the following aspects:

• The parent with whom the children shall have to cohabit.
• The way in which the custody of the children has to be exercised.
• The visitation rights of the non-custodial parent.
• The sum that has to be paid for children's alimony.
• Any compensation allowance or alimony that, if any, shall be made by one of the spouses in favour of the other spouse.
• The attribution of the use of the family dwelling.
• The manner, if any, in which the spouses continue to contribute to family expenses.

The judge's decision shall determine the separation, divorce or annulment of the spouses and contain the approval of the governing convention.

b) In case of marriage annulment, divorce or judicial separation initiated by just one of the spouses, without the consent of the other, the judicial authority shall resolve directly on the aspects that otherwise should have been established in the governing convention.

The marriage certificate and the birth certificates of the children are always required. The intervention of a legal representative (Procurador) and a Spanish Lawyer is required.

The sentence determining the marriage annulment, legal separation or divorce will be filed to the Spanish Civil Registry. This sentence can be appealed.

The parties may apply for the modification of the measures established by the sentence, and such modification shall be made by means of a subsequent judicial dictum.

These are only general guidelines and not definitive statements of the law, all questions about the law's applications to individual cases shall be directed to a Spanish lawyer.

27 September 2011
Veneta Krumova / Expatica

Article by iAbogado Servicios Jurídicos SL (Madrid, Spain). Visit iabogado.com for more original content like this.

Sources:

ehow.com

ewnbusiness.com

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