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Everything you need to know about mutually agreed divorce

Everything you need to know about mutually agreed divorce

There are great advantages that the divorce by mutual agreement has in relation to the contentious divorce, since it allows to reduce the costs of the process and conclude the divorce procedure more quickly and efficiently. The procedure of divorce by mutual agreement consists of the presentation of the claim and a divorce agreement by mutual agreement before the Family Courts.

In that sense, and in accordance with the provisions of article 86 of the Spanish Civil Code, for the divorce to proceed by mutual agreement, a period of no less than three months must have elapsed from the celebration of the marriage and the agreement must be presented by mutual agreement.

On the other hand, both spouses can choose to hire the services of the same lawyer to assist both of them and be represented by a single attorney or choose to have each party be represented by their own lawyer, and thus negotiate the divorce agreement by mutual consent.

Content of the divorce agreement by mutual agreement

The divorce agreement by mutual agreement is an agreement between the parties governed by articles 81 to 87 of the Spanish Civil Code, which must contain the following:

  • Determine the forms of exercise of parental authority, care of children, forms of communication and visitation or stay with the parents.
  • It is important to determine how the family home will be used in relation to the powers that are held over it and its belongings.
  • Indicate the amount for alimony and other economic burdens of the spouses.
  • Establish, where appropriate, the compensatory pension provided for in article 97.
  • If appropriate, indicate what corresponds to the liquidation of the community property.

Once the above premises have been established in the mutual agreement agreement, the corresponding documentation will be attached together with the claim before the Family Judge, who will analyze what is necessary to issue the decision in which the measures are established and declare the dissolution of the marriage bond by divorce by mutual agreement.

What happens if the agreement is rejected?

When there are minor children, prior to the judge's decision, the Public Ministry, as part of good faith, must issue a report in which it reflects that the divorce agreement by mutual agreement presented by the spouses does not harm the best interests of the children.

For this reason, if any detrimental condition has been regulated, the agreement may be rejected regardless of whether the spouses have freely agreed to it. In this case, the judge will reject the divorce claim for not having signed the agreement in accordance with the Law and respecting the interests of all parties involved, especially minor children.

For all these reasons, it is essential to hire the services of an expert lawyer in uncosted divorces so that they can guide you during the process and thus prevent the agreement from being rejected, having to go several times before the court to correct what was agreed in principle by mutual agreement.

How long is the delay in a divorce by mutual consent?

An uncontested divorce is usually so quick that it is even known as an express divorce. It all depends on whether the representation of a public defender is requested, which may take up to 6 months to be appointed, or hiring the services of a family lawyer, which is resolved in a short time.

Once the lawyer has been appointed, the following steps will be taken:

  • Both spouses may agree to hire a single lawyer, or each of the spouses to hire their own lawyer, who will be informed of the ways in which they agree to regulate what is established by law for the divorce to proceed by mutual agreement.
  • Once the agreement has been drawn up and it has been analyzed, the spouses will proceed to sign it and the petition for divorce will be filed by mutual agreement in the corresponding family court.
  • Once the claim is received by the judge, the spouses must go to ratify the agreement by mutual agreement with the signed agreement, and the corresponding judgment will be issued.

What documents must you have to start the divorce by mutual agreement?

In addition to the mutually agreed divorce agreement, you must submit:

  1. The literal marriage certificate.
  2. If there are children, their birth certificate.
  3. General power of attorney for representation granted to the attorney and attorney, as appropriate.
  4. In cases where measures for economic compensation are requested, the documents that support the economic situation of the spouse who requires it.
  5. Certificate of registration or residence of the spouses.

Contact us, and our lawyers specializing in family law will study your specific case. 

At Forcam Lawyers we have offices in Barcelona, Madrid and Reus. We can assist you in person at our offices, or remotely, telematically (videoconference, telephone, etc.) without having to go to our office in person, since we work with national and international clients.