Table of contents
1. Express divorce
The Express Divorce process was introduced in Spain in 2005 and can be broken down to the following elements:
- Reasons for choosing Express Divorce Proceedings
- Benefits - Costs & Time
- Requirements for an Express Divorce
- Steps to an Express Divorce
- The 'Convenio' Agreement
- Other Aspects of an Express Divorce
2. Why apply for an express divorce?
As the name suggests, 'Express Divorce' is a fast-track lower-cost procedure available to end a marriage in Spain. It is formally called divorcio por mutuo acuerdo and requires that both spouses agree to the divorce and, importantly, to all the terms of the divorce.
This means that there must be agreement regarding such matters as custody of the children and visitation rights, use and enjoyment of the family home and the distribution of matrimonial assets. If this is the case and agreement has been reached with no areas of dispute remaining, then the couple may apply to the court for a divorce via the fast-track process.
Of course, in the simplest situation where there are no children nor matrimonial assets an express divorce would be the obvious route for divorce in Spain. Express divorce is an option that may be used by anyone, even - with certain provisos - where the marriage took place outside Spain.
3. Benefit 1 - cost
The Express Divorce route is cheaper as it permits both spouses to use the same lawyer who will draw up the divorce agreement on the agreed terms of the spouses and collate all the required information and submit the relevant documentation to the court.
A 'procurador' (officer of the court) is required legally to be present in all divorce cases in Spain, which will affect the final fee also. It should be borne in mind that the cost can rise due to additional complexity or where the lawyer needs to work with the couple to ensure that agreement is reached on any aspect of the divorce agreement.
You should always check if your lawyer is adhering to the Law Societies' recommended tariffs. Many still do, even though they are not required to. If you wish, you can avail of the Advocate Abroad lawyers' online express divorce service, which offers a very competitive price to English-speaking clients.
4. Benefit 2 - time
Another important benefit of the express divorce process is that it can be finalised quickly. In some cities where the courts have set up a special fast-track family law system, an express divorce can be completed within a few weeks.
If no such special court system exists, then the process may take up to two or three months. However, this still compares very favourably with the contentious divorce process, which will require a minimum of six months though will often last for more than a year.
5. Requirements for an express divorce
One of the biggest changes brought about by the new legislation was that it became unnecessary to allege grounds for the divorce. Until then, it was normal and necessary to have any (and who knows, perhaps even all) of the following alleged in the divorce courts of Spain: alcoholism, infidelity, cessation of matrimonial cohabitation and drug addiction.
But since the new legislation came into force, it has been unnecessary to allege grounds for a divorce – it is merely necessary that three months have passed since the marriage took place in order for a divorce to be sought by either or both of the spouses.
Of course, a cornerstone of the Express Divorce procedure is that there is an agreed understanding between the spouses both as to the willingness to end the marriage and the terms of the divorce. This takes the form of a written and signed agreement, known in Spanish as a 'Convenio'. So what steps does a person need to take in Spain to end a marriage by way of express divorce?
6. Steps to an express divorce
The first step is to come to an agreement with your spouse to proceed with a divorce. Then it is necessary to consider the marriage settlement i.e. what to do with the matrimonial home and any other joint assets or furnishings, custody and visitation rights regarding any children, payment of ongoing bills such as a mortgage and any child's upkeep, payment of any alimony by one spouse to another etc
Once these issues have been agreed, then it is simply a matter of contracting a lawyer who will draw-up the agreement formally in the form of a 'Convenio' and have this submitted to the relevant court with the necessary additional documentation required.
7. Documents required
When applying for an express divorce in Spain, you will typically be required to present originals of the following documents:
- Certificate of marriage (available from the Registro Civil),
- Birth certificates of any children of the marriage (available from the Registro Civil),
- Certificate of empadronamiento of one of the spouses (available from the town hall)
- 'Convenio' agreement
8. The 'convenio' in express divorce
Article 90 of the Spanish Civil Code establishes the minimum requirements of a Convenio agreement between the spouses. It must:
- Establish the care of any children of the marriage, the person who will exercise legal authority over the children and the form and duration of visitation rights of the non-custodial parent
- If considered necessary, the visitation rights - if any - that grandparents will have with their grandchildren should be determined – always taking into account the interests of the latter
- Assignment of the family home and household furnishings
- What contributions are to be made towards living and childcare costs as well as how these are to be calculated in the future (child maintenance payments, household bills, mortgage etc)
- The division of the matrimonial assets
- Any alimony payments that are to be paid by one spouse to the benefit of the other
The judge will almost certainly approve the Convenio agreement unless it is harmful to the children or gravely detrimental to one of the spouses. Should the judge decide that the agreement is not acceptable, then it will need to be renegotiated by the spouses and resubmitted to the judge for reappraisal.
Should there be a substantial change in the circumstances that gave rise to the Convenio agreement, then it may be amended judicially or by a new agreement between the parties.
9. Express divorce timeframe
The time necessary for an express divorce to pass through the Spanish courts should be no longer than 1 – 2 months maximum. In some cities it can even be quicker and take no more than 2 – 3 weeks, though this will depend upon the existence of specialised Family Law judges and whether a fast track procedure has been instigated in the area.
10. Other aspects of express divorce
It is normally required for both spouses to attend the court hearing at the date and time appointed by the judge so that they can both ratify the Convenio in person.
If for any reason it is impossible for one of the spouses to personally attend, then that spouse may appoint the Procurador to ratify the Convenio on his or her behalf through a special power of attorney. The Procurador is an officer of the court specialised in its functioning and who works closely with the lawyer to manage matters such as the documentation needs to be filed and is able to advise on the correct procedure in each matter before the court. Along with a lawyer, their presence is mandatory in express divorce cases to handle matters on behalf of the spouses when they have reached the court stage.
As long as at least one of the spouses is ordinarily resident in Spain, then even a couple who are not Spanish nationals and who were not married in Spain may avail of an express Divorce under Spanish law. The spouse resident in Spain should apply for the process to be initiated. Advocate Abroad can put you in touch with our team offering an Express Divorce service in English.