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.