Among the powers that the Voluntary Jurisdiction Law has attributed to Notaries are separations and divorces. Their regulation is contained in article 54 of the Notarial Law and in articles 82 and following of the Civil Code.
The first thing we must point out before answering, but not solving, the doubts that the application of the law is generating, is to differentiate between separation and divorce.
Separation is a suspension of the effects of marriage, specifically the obligation to live together and the possibility of binding the assets of the other in the exercise of domestic authority, while divorce is the breaking of the marriage bond. The big difference is that a divorced person can enter into a new marriage, but not a separated person, although under Catalan law they are allowed to formalize a de facto partnership with another person.
1.- When can you go to the Notary to obtain a separation and/or divorce?
A previous marriage is required, three months must have passed since its celebration, the separation or divorce must be by mutual agreement and there must be no minor children who are not emancipated or whose capacity has been judicially modified and who depend on their parents.
If all these conditions are met, the separation and divorce can also be processed before the court clerk. But if all these conditions are not met, the separation and divorce can only be processed before the judge..
1.1.- Can notarial separation and/or divorce be used when the children belong to only one of the spouses?
This is one of the issues that is generating some controversy due to the lack of clarity of the law. When it is said no, it is for an argument of prudence. In my opinion, and given the different conceptions of the concept of family, one should go case by case, without denying the possibility in a resounding manner. Within Catalan law, given the limitations of the powers that one of the spouses has with respect to the children of the other (article 236-14 CCCat), for a matter of coherence, he or she should not be deprived of notarial separation and/or divorce when he or she has no obligations towards the children of the other.
1.2- Can a notarial separation and/or divorce be requested when the woman is pregnant?
When a decision is made to say no, it is also for reasons of prudence, so it will be necessary to go case by case. In any case, the agreement is always subject to revision when the new needs of the children or the change in the circumstances of the spouses so advise.
2.- Which Notary can I go to?
The notarial separation and/or divorce must be processed before a competent Notary, who will be any of the Notaries of the last common domicile or the domicile or habitual residence of any of the grantors (article 54.1 LN).
3.- How does notarial separation and/or divorce take place?
Notarial separation and/or divorce is carried out by means of a public deed, with the requirements that we will see below. That is, it is carried out in a single act, since there is no petition for divorce and deadlines to resolve it as occurs with court proceedings.
4.- What should I provide to the Notary to process the separation and/or divorce?
A marriage certificate, the spouses' identity documents and a regulatory agreement for separation or divorce must be presented, Prepared by lawyer, which may be the same for both parties.
5.- What is the regulatory agreement?
This is a document signed by both spouses and prepared by a lawyer, which contains the effects and measures that the parties agree to regulate their separation and/or divorce, and which must be approved by the Notary (if it is processed before him). This document must be attached to the separation or divorce deed.
The content of the agreement, when the separation or divorce is notarial, and given that it cannot include rules on the care and custody of minor children, will be limited to the following points:
a) The attribution of the use of the home and family furnishings.
b) The contribution to the expenses of marriage and alimony, as well as their updating bases and guarantees, where applicable.
c) The liquidation, where applicable, of the economic regime of the marriage.
d) The pension that, in accordance with article 97, should be paid, if applicable, to one of the spouses.
It is possible that these circumstances have been agreed in advance, in which case if they are not ratified or modified by mutual agreement, there would be no choice but to resort to legal proceedings to demand compliance.
6- Who should sign the separation and/or divorce deed?
Obviously both spouses.
However, older children or emancipated minors must also execute the deed regarding the measures that affect them due to not having their own income and living in the family home.
7.- Do I need a lawyer to separate or divorce before a Notary?
Yes, and it can be the same for both spouses. It is not essential, but it is advisable, that the lawyers sign the deed, to prove that the spouses have been assisted by them in the separation and/or divorce.
What is not possible is a direct granting by the interested parties without the intervention of a lawyer.
8.- Can I give powers for notarial separation and/or divorce?
The law requires that the spouses must personally participate in the execution of the deed. In any case, separation and divorce, as in general all actions in family matters, could be carried out by means of a very detailed power of attorney. In other words, all the conditions of the divorce should be reflected in the power of attorney, without any scope for adjusting details.
What is not acceptable is that the lawyer, using power of attorney to sue, divorces me.
9.- Is the simultaneous attendance of spouses necessary?
We are not going to deny that it is the most advisable, but it is not essential. Thus, one of the spouses could ratify the divorce granted by one of them unilaterally, but with the consequence that until the signatures of both are there, there will be no divorce.
In our practice, we have carried out divorces with ratification by the other spouse before the Spanish Consul in another country.
10.- Can older children refuse their parents' separation or divorce?
We have already said that older children or emancipated minors must consent to the separation or divorce of their parents, in order to approve the measures that affect them due to their lack of income and their lack of living in the family home. If they do not sign the deed, there would be no other option but to resort to legal proceedings.
But this does not mean that they have a right of veto. The law is not particularly clear, but it is most reasonable that they should only consent to their own maintenance.
11.- Can the Notary refuse to sign the deed if he considers it detrimental?
Article 90 of the Civil Code tells us that if the Notary considers that, in his opinion, any of them could be harmful or seriously detrimental to one of spouses or for affected emancipated children or minors, they will notify the grantors and will terminate the file. In this case, the spouses may only go to the Judge for approval of the proposed regulatory agreement.
Within the law of Catalonia there is greater freedom Since article 233.3.1 of the Civil Code of Catalonia provides:: “The agreements adopted in the regulatory agreement must be approved by the judicial authority, except for the points that are not in accordance with the interest of the minor children.”
I do not think there is any doubt that the rule is also applicable to separations and divorces before a Notary.
12.- Since when have I been separated or divorced?
Separation or divorce takes effect between spouses from the moment the deed is signed. For example, if one of them were to die after the deed was signed, the other would have no legal inheritance rights, even if the deed had not yet been registered in the Civil Registry.
In order to prove separation or divorce in front of other people, it is necessary to register it in the Civil Registry of the place where the marriage is registered. For example, a new marriage cannot be contracted until registration is complete.
13.- How much does separation and/or divorce before a Notary cost?
We will differentiate the following issues:
13.1.- Notarial costs.- We are waiting for the approval of some tariffs. This does not mean that it is not possible to resort to separation and/or divorce. According to the current tariffs, the cost will depend to a certain extent on whether or not there is a division of assets. The cost, in any case, will be very affordable.
13.2.- Attorney costs.- It will depend on each lawyer.
13.3.- Civil Registry.- So far it's free
13.4.- Property Registry.- It will depend on the value of the properties to be distributed. If they are not distributed, there will be no cost.
Regarding the fiscal cost, I refer to my blog entry Taxation of separations and divorces before a notary
14.- What happens if one or both spouses are not Spanish or do not reside in Spain?
The existence of any of these circumstances may influence the determination of the authority before whom the separation or divorce must be processed and the applicable law.
As far as it concerns to the issues of competence, it will be necessary to take into account Council Regulation 2201/2003 of 27 November 2003, which establishes that the Spanish authorities (notaries in the case at hand) will be competent: a) when either of the spouses had habitual residence in Spain at the time of the notarial separation or divorce, regardless of the nationality of one or both spouses; b) when both spouses have common Spanish nationality.
As far as it concerns to the law applicable to separation and/or divorce, it will be necessary to take into account Council Regulation 1259/2010 of 20 December 2010, which gives preference to the law that the spouses have chosen in a prior agreement or in their own procedure from among the following: that of the current habitual residence; that of the last habitual residence of the spouses provided that one of them has habitual residence there; that of the nationality of either of the spouses; and in the absence of a choice, it establishes a hierarchical criteria, which does not deserve full treatment since we are talking about separation and/or divorce by mutual agreement, which will include the applicable law.
For a more technical view of the aspects discussed in this entry, I recommend the blog of my colleague, Francisco Mariño Pardo, for its extraordinary rigor and depth. “Some initial ideas on divorce and separation before a notary after the Voluntary Jurisdiction Law. Its requirements. The granting of the public deed. The non-existence of minor children who are not emancipated or whose capacity has been judicially modified. The questionable assessment of the harm to the spouses or children.”, which you can consult by clicking here
