Divorce Agreement Spain: signed by the Spouses but not ratified in Court, still enforceable?

Divorce Agreement Spain

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

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.

 

Divorce Agreement Spain: conclusion

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.

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32 Lawyers Offering Divorce Services in Spain

Testimonials for our Divorce service
  • Richard Flawn
    Richard Flawn , Alicante

    I Found Jose very professional and knowledgeable regarding my divorce proceedings and would gladly recommend him.


    May 31, 2020
  • Stephen Harris
    Stephen Harris, Fuengirola

    My solicitor here in Spain did get me a divorce as requested and tried his best to get it recognized in the U.K. unfortunately this has proved impossible. My solicitor here probably not aware of the difficulty at that time but did his utmost best.


    May 14, 2020
  • Havin Omed
    Havin Omed, Madrid

    I was satisfied with all of services above. Especially his responses so good.


    Jan 17, 2020
  • Christopher Allen
    Christopher Allen, Las Palmas

    Very informative and clear.


    Nov 28, 2019
  • Michelle
    Michelle, Murcia

    I’m very happy with the way Maria dealt with everything,I would definitely contact Maria if I ever needed her services again 😃


    Nov 27, 2019
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco and Carmen did a great job handling my divorce. In this difficult time for me, they handled the issues with understanding and flexibility.


    Francisco was very good in court and he could defend well against all the challenges made to the pre-nuptial contract my husband and I signed, so that it was upheld in full.


    Sep 29, 2019
  • Eamonn Gomez
    Eamonn Gomez, Madrid

    Francisco was extremely helpful, he couldn't have done more.


    Sep 07, 2019
  • Tina Shiels
    Tina Shiels, Fuengirola

    Alvaro was very helpful and went above and beyond to try to help me in my situation as I needed it to happen as fast as possible.


    Even whilst he was on holiday he was in touch and made things happen. would definitely recommend!


    Sep 06, 2019
  • Marion Brennan
    Marion Brennan, Alicante

    At every stage of our family case, Jose Antonio has been knowledgeable and thorough, very professional while remaining kind and supportive and ensured that we took the right steps for a positive outcome.


    I would highly recommend Jose Antonio for legal representation.


    Jun 29, 2019
  • Robert Cunningham
    Robert Cunningham, Mallorca

    Rosa was absolutely first class. She made a very difficult time in our lives a lot easier and for that I could not be more grateful. Thank you Rosa


    May 20, 2019
  • Keisha
    Keisha, Valencia

    Inmaculada was professional and also demonstrated compassion and understanding during this difficult period in my life.


    Apr 03, 2019
  • Wayne
    Wayne, Valencia

    Francisca was very informative and helpful. She handled my divorce professionally and made it easy for me throughout the process.


    Highly recommend and reasonable fees. Thank you, Francisca!


    Mar 16, 2019
  • Wayne Cherry
    Wayne Cherry, London, England

    Francisca was very informative and attentive to all of my inquiries and concerns. I would definitely be going back to her if needing her services again and would recommend her brilliant services.


    Mar 09, 2019
  • Candy
    Candy, Cadiz

    Francisco was very responsive, supportive and understanding.


    Unfortunately, I had to use another lawyer who has helped me in another case.


    Feb 11, 2019
  • Colin Wilson
    Colin Wilson, Australia

    Overall it was great. Rosa always answered all questions asked and provided clear, concise and well explained answers.


    When there was a delay in responding she did offer an apology which was appreciated. Rosa always instilled a sense of confidence that she knew exactly what was going on, what I was asking, and what the applicable law was.


    When not a Spanish local and dealing with her remotely, this provided great comfort in a sensitive matter.


    Oct 30, 2018
  • Julie Smith
    Julie Smith, Torrellano

    I can't compliment my solicitor enough.


    From our initial meeting right through to my ultimate divorce (with no unpleasant surprises the entire duration of the entire process), he immediately responded to my many enquiries, always had mine and my daughter's best interests at the forefront of any considerations and was well worth every penny of his extremely reasonable fee.


    Excellent value for money, totally approachable and very professional and understanding. I highly recommend him and will continue to retain his services for other matters in the future.


    Apr 20, 2018
  • Robert Davies
    Robert Davies, Mallorca

    Very supportive and clear on producing a suitable divorce settlement.


    Efficient, understanding and professional.


    Mar 12, 2018
  • D slocombe
    D slocombe, Spain

    Jose is very friendly and understanding.


    I am very satisfied and I would you use the same lawyer again in the future.


    May 19, 2017
  • Louise Kirby
    Louise Kirby, Alicante

    Jose Antonio is a very dedicated lawyer. He ensures he has a deep understanding of the case and provides excellent advise on a range of issues.


    He has often replied to queries out of hours and works hard to provide the best outcome for his clients.


    His service is outstanding and I would highly recommend him.


    Feb 15, 2017
  • Stanley Jones
    Stanley Jones, Llano del Camello

    I am very satisfied with Oliver, he was very helpful and always happy to assist.


    I would definitely use the same lawyer again in the future.


    Jan 17, 2017
  • CW
    CW, Ibiza

    Very knowledgeable and supportive from the outset.


    Made to feel very comfortable and nothing was too much trouble. Very highly recommended.


    Nov 22, 2016
  • Kate Godbehere
    Kate Godbehere, Granada

    From the outset, Rosa was extremely professional, approachable, efficient and competent. Her level of English is extraordinary, something very much appreciated as it made life easier for me during an inherently difficult time.


    Her correspondence was always relevant, detailed, simply and clearly explained and expressed. Rosa was kindly, matter of fact, calm, patient and always reassuring.

    Her pro-active, intelligent, thoughtful and knowledgeable advice helped very much during a particularly delicate and worrying stage of the process.


    Feb 25, 2016
  • Thomas Hills
    Thomas Hills, Spain

    Legally I believe everything was covered in what I think was a complicated situation, so I am satisfied that I was well represented.


    No problems were encountered with language, as the lawyer had perfect English. Meetings were scheduled and kept, which is good for Spain !

    Overall I am very satisfied with the service.


    Mar 13, 2015
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