What is express divorce?

In Spain, divorce can be processed before the court by means of a contentious procedure or by means of a mutual agreement procedure. It will always be obligatory to opt for the judicial procedure when there are minor children or older children for whom support measures have been judicially established, as the Civil Procedure Act establishes that the participation of the Public Prosecutor's Office is obligatory. 

For the situation when there are no common children or when they are of legal age, an agreement has been reached between the spouses, and speed is sought, the option of divorce before a Notary Public can be chosen.

What is express divorce?

Law 15/2015 amended the Civil Code and gave notaries the possibility of separating or divorcing spouses, by establishing that separation or divorce by mutual agreement can be requested before the Legal Advisor of the Administration of Justice or before a notary. This power was previously reserved only for judges.

Express divorce’ refers to the legal procedure that allows two people to separate or divorce without the need for judicial intermediation. It is usually a cheaper and quicker procedure to dissolve any marital relationship, because, as there is a prior agreement between the parties, it is not necessary to present evidence and/or testimonies. This procedure usually takes between 1 and 3 months.

We are going to focus on the divorce procedure before a notary, although the requirements are the same as those for divorce by mutual consent before the Justice Administration Lawyer.

Characteristics of express divorce

The separation or divorce before a notary has as prerequisites the existence of an agreement between the spouses and the absence of minor children who are not emancipated or who have a disability and are dependent on their parents.

During the course of the process, the intervention of a lawyer is necessary, who will be in charge of drafting the document called the regulatory agreement, which contains the agreement reached by both spouses. In addition, the lawyer will present the agreement to the notary and will be present at the ratification of the agreement before the notary.

Regulatory agreement

The regulatory agreement must express the unequivocal will of the spouses to divorce, and include the measures that will regulate the effects derived from the divorce, which are those included in article 90 of the Civil Code, such as the attribution of the use of the home, the contribution to the expenses of the marriage or the possible compensatory pension in favour of one of the spouses.

Express divorce with children of legal age

If there are children of legal age or emancipated children, they will have to give their consent ‘regarding the measures that affect them because they do not have their own income and live together in the family home’ according to article 82 of the Civil Code. This consent must be given at the time of granting the deed, although the law does not require this to be done in person, so that they could be represented by a proxy.

As we have already explained, in the situation in which there are minor or adult children for whom support measures attributed to their parents have been judicially established, the exclusive competence of the judges and courts is maintained.

Requirements for express divorce

In order to opt for this type of divorce, the following requirements must be met:

- Divorce by mutual agreement.

- Have been married for at least three months.

- Not having minor children or older children for whom support measures have been judicially established for their parents.

- Provide a regulatory agreement.

- At least one of the spouses must reside in Spain.

How the procedure is carried out

The divorce has to take place before a notary in the last common domicile or the place of habitual residence of either of the spouses.

The notary will check and attest that the spouses understand and accept the content of the agreed agreement, that it is fair to the parties and that it does not prejudice one of the partners. The agreement may also contain agreements on joint property or on the liquidation of the matrimonial property regime.

After the notary has checked that everything complies with the legal provisions, the deed of divorce will be signed, after which the notary will notify the Civil Registry.

What documents do you need?

The following documents are required to carry out the express divorce:

- Marriage certificate.

- Family record book to justify that there are no minor children.

- Certificate of census registration of one of the spouses to determine which notary to go to.

- Regulatory agreement.

- If you are going to proceed with the liquidation of the community of property, the necessary documentation to accredit the disposal of the assets and debts existing in the community of property.

However, if you wish to go to court, you can opt for this route, but you must also have a lawyer and, instead of paying the notary's fees, you will have to pay the solicitor's fees.