What Is a Notarial Divorce

Complete Guide to Notarial Divorce in Spain

In Spain, notarial divorce is a legal procedure that allows couples to dissolve their marriage quickly and easily as long as both spouses agree and do not have minor or incapacitated children under their legal guardianship. This type of divorce is carried out before a public notary rather than following the usual court process before a judge.

Notarial divorce was introduced as part of the Voluntary Jurisdiction Law in Spain, with the aim of removing certain legal procedures from the courts and speeding them up, including divorce, when conditions allow for an amicable agreement between the parties. To carry out a notarial divorce, the spouses must present an agreed regulatory agreement, detailing the distribution of assets, compensatory pensions (if any), and any other agreement regarding their separation.

It is important to note that notarial divorce is only applicable in cases where there are no minor or incapacitated children involved, as these situations require judicial supervision to protect the interests of minors or dependents.

What Is Notarial Divorce?

Notarial divorce is a form of marriage dissolution that takes place before a notary, as long as both spouses agree to divorce and do not have minor or incapacitated children under their care. This type of divorce was introduced in Spain with the voluntary jurisdiction law, seeking to speed up processes and ease court backlogs. The process is faster and less expensive than judicial divorce, making it an attractive option for couples who want to simplify their separation.

Requirements to Apply for a Divorce

For notarial divorce to be possible, it is necessary to meet several essential requirements:

1. Mutual agreement between spouses: Both parties must be in complete agreement with the divorce and its terms.
2. Absence of minor or incapacitated children: They must not have minor children or adult children who are incapacitated and financially dependent on their parents.
3. Regulatory agreement: The spouses must present a regulatory agreement detailing the distribution of assets, financial responsibilities, and, if applicable, compensatory pension.
4. Required documentation: Various documents are required such as the marriage certificate, registration certificate, among others.

This notarial procedure not only reduces the time and costs associated with divorce but also allows couples to manage their separation in a more personal and less confrontational manner.

Advantages of Divorce

Notarial divorce in Spain offers multiple benefits, making it a preferred option for many couples seeking an amicable separation:

1. Speed: The process is much faster than judicial divorce. In many cases, notarial divorce can be completed in just a few weeks.
2. Reduced cost: Being a shorter and less complex process, the associated costs are generally lower, including legal and administrative fees.
3. Simplicity: By eliminating the need to go through the courts, the process is simpler and less stressful for the parties involved.
4. Privacy: Notarial divorce is handled privately, without the need to expose personal details in a public judicial setting.
5. Direct control: The parties have more control over the agreement, allowing greater flexibility to reach mutually beneficial terms.

Process and Steps

The procedure for obtaining a notarial divorce is clear and structured, making it easier for couples to follow the necessary steps:

1. Initial agreement: Both spouses must agree to divorce and to all conditions of the regulatory agreement.
2. Required documentation: Gather all required documents, such as the marriage certificate, birth certificates of children (if any), and property documents.
3. Drafting the regulatory agreement: With the help of a lawyer, the spouses draft a regulatory agreement detailing the distribution of assets, custody (if applicable), and any other relevant aspect.
4. Appointment with the notary: An appointment must be requested with a notary who will review the documentation and the regulatory agreement to ensure it complies with the law and that both spouses consent to the divorce voluntarily.
5. Signing the divorce: If the notary validates the agreement and documentation, they will proceed with signing the divorce deed.
6. Registration of the divorce: Finally, the divorce deed must be registered with the Civil Registry for the divorce to have full legal effect.

This process eliminates the need for lengthy court hearings and allows couples to finalize their marriage with dignity and efficiency.

Important Considerations About Notarial Divorce

Although notarial separation has clear advantages, there are some crucial considerations that couples should keep in mind before opting for this method:

1. Complete and Mutual Agreement: It is essential that both spouses are in complete agreement not only on divorcing but also on all terms of the regulatory agreement. Any disagreement can complicate the process and require judicial intervention.
2. Limitations regarding children: Notarial divorce is only applicable if the couple does not have minor children or incapacitated children who are financially dependent on them. In the presence of minor children, the divorce must be processed judicially so that a judge can review and approve agreements regarding their welfare.
3. Need for legal advice: Although the process is notarial, it is advisable for both spouses to obtain independent legal advice. This ensures that the regulatory agreement is fair and balanced, protecting the rights of both parties.
4. Legal effects of the regulatory agreement: The regulatory agreement signed before a notary has the same legal validity as one approved by a judge. This means that any breach can be grounds for forced enforcement by the courts.
5. Associated costs: Although generally more economical than a judicial divorce, notarial divorce involves certain costs, such as notary and lawyer fees. These costs may vary, so it is important to consider the available budget.
6. Processing time: Despite being a faster process than judicial, the processing of notarial divorce may be delayed if the documentation is not complete or if there are errors in the regulatory agreement.
7. Periodic review of the agreement: Changing personal situations, such as financial circumstances or the needs of the spouses, may require future adjustments to the regulatory agreement. It is prudent to consider the possibility of periodic reviews to adapt the agreement to new circumstances.

Taking these considerations into account, couples can determine if notarial divorce is the most appropriate option for their particular situation, thus ensuring a more harmonious and effective transition to their new stage of life.