Divorce

What is a notarial divorce?

A notarial divorce is a legal procedure by which a marriage is dissolved by mutual agreement, formalising the end of the marital relationship before a notary and regulating the legal consequences arising from the separation.

This process is based on the possibility, available in some countries such as Spain, of obtaining a divorce without having to go before a judge, provided that certain requirements are met.

When and how can it be requested?

• Both spouses must agree to divorce and to all the terms
• The minimum legal period since the marriage must have elapsed, which in Spain is 3 months (except in exceptional cases such as violence).
• The application is made by public deed (escritura pública) before a notary, which will include the agreed separation/divorce agreement (convenio regulador).
• If there are minor children or children lacking legal capacity, the involvement of the Public Prosecutor (Ministerio Fiscal) is usually required to protect their rights.

What does divorce involve?

• Legal dissolution of the marriageFrom the signing of the public deed, the marriage is officially dissolved.
• Divorce agreementThe document includes agreements on parental authority, custody, visiting arrangements, maintenance payments, use of the family home, division of assets, etc.
• Civil RegistryThe divorce deed must be recorded at the Civil Registry in order to take effect with regard to third parties.
• No court proceedings neededGoing to court is avoided, provided that the conditions for a notarial divorce are met.

Formal requirements before the notary

• Both spouses must appear together with their personal identity documents.
• A clear, complete and balanced divorce agreement must be drafted.
• Express and voluntary consent of both parties.
• Where there are minor children, the agreement must protect their rights and the notary must verify that it complies with the law.
• Payment of the corresponding notary's fees.

Main legal effects

• End of marital obligationsThe duties of cohabitation, fidelity and mutual support come to an end.
• Financial and property arrangementsCompensatory payments, maintenance, division of assets and use of the family home are established.
• Arrangements for the childrenCustody, visiting rights, child maintenance and other protective measures.
• RegistrationThe dissolution is recorded at the Civil Registry, making the divorce public.

What are the advantages of a notarial divorce?

• SpeedThe process is much quicker than going through the courts.
• Cost savingsLawyers' fees, expert costs and court fees are reduced.
• Greater privacyAs it is a private procedure before a notary, it is not made public like a court case.
• Less conflictIt encourages amicable agreements and avoids confrontation.

Practical example

A couple who have been married for 5 years decide to divorce by mutual agreement. They go to the notary together and submit a divorce agreement in which they agree on shared custody, the division of assets and child maintenance for their children. The notary formalises the divorce in a public deed and has it recorded at the Civil Registry. From that moment on, they are legally divorced without having to go to court.