When a couple decide to separate, or indeed to get divorced, via the “mutually agreed” process, an agreement is drawn-up that reflects the (agreed) wishes of the two spouses, and is known as the “Convenio Regulador” or “Divorce Agreement”.
The agreement can contain details that will govern the economic relationship post-separation as well as matters relating to any common children. Article 777 of the Law of Civil Procedure states that it is obligatory to present a Divorce Agreement together with the Divorce Petition, when opting for the “mutually agreed” process.
It is interesting to highlight that the required contents of the Divorce Agreement are specifically detailed in Article 90 of the Spanish Civil Code, however without going into too much depth, as a general rule, the Divorce Agreement should be ratified judicially with said official approval conferring procedural legitimacy as well as rendering the obligations contained in the agreement binding on the ex-spouses. At this point a question arises, what validity has a divorce agreement, entered into by the spouses, but which has not been judicially ratified?
Case law would suggest that in such cases, much importance is attached to the issue of consent, in accordance with Article 1255 of the Spanish Civil Code, on the basis that if the stipulations that will govern from the moment that the marriage is terminated have been agreed by both spouses, being the case that such stipulations do not harm their own interests, and moreover, those of any children, (since a universal principle of Family Law is that priority is always attached to the interests of any minors), there is no reason why effectiveness should be stripped from a consensual agreement.
For this reason, it is understood that, within the spirit of article 1254 of the Spanish Civil Code and the basic principle that underpins the Civil Law: “Pacta Sunt Servanda” – ‘that which is agreed, obliges’ – thus, an agreement while not ratified judicially, but subscribed to by both parties, is effective, without more.
The Supreme Court handed down a decision in 2011 within this ambit of the law. The Court decided that, with regard to the validity of a divorce agreement between the parties relating to the payment of alimony, agreed while the spouses were living apart, and where they had decided to later ratify in Court, that the Court was obliged to uphold the amount agreed.
In some cases it might be maintained that it would be possible to enforce terms of a separation when the spouses have decided to live apart and have agreed verbally such terms as, for example, child maintenance payments. This may be the case even where there is no physical document, signed by the parties, if sufficient time has elapsed in which the referred to amount has been regularly paid on the basis of a tacit agreement on the part of both parties regarding these terms.