The New Law of Voluntary Jurisdiction of 2015 has introduced the novelty of carrying out the procedure of divorce by mutual agreement or separation and without minor children before the Notary, and being assisted by a lawyer. The lawyer’s action is mandatory.
What requirements must be met in order to opt for this route? Basically two:
1) There is an agreement between the spouses.
2) There must be no minor or disabled children.
Therefore, in order to be able to go to the Notary, the parties must agree on all the points of the divorce, including the distribution of the common or communal assets. If there are minor or disabled children (“with judicially modified capacity”), it is compulsory to resort to the traditional judicial route, since the intervention of the Public Prosecutor’s Office is mandatory.It is advisable to always try to reach an agreement at the time of divorce, so even if there is no prior agreement, the lawyer will always try to negotiate the terms between the parties and reach an agreement on the divorce. The regulatory agreement must be drafted and negotiated in advance by the lawyer, who will ensure that the interests of both parties are respected in an equitable manner.
Once the above requirements have been met, the lawyer will draw up the regulatory agreement, which will reflect the will of the spouses to end the marriage, and share the property existing in the conjugal society, if any. The content of the regulatory agreement is regulated by article 90 of the Civil Code, and except for the aspects relating to relations with minor children who do not enter into this form of divorce, are as follows:
1) Attribution of the use of the family dwelling and family trousseau.
2) The contribution to the costs of the marriage (common expenses) as well as its bases of updating and guarantees if applicable.
3) The liquidation, where appropriate, of the financial arrangements for the marriage.
4) The establishment of a possible compensatory pension or maintenance for children of full age, but who are economically dependent on their parents, for example, when they continue their studies.
This regulating agreement must be signed by both spouses and the lawyer will send it to the notary public who is in the same district in which the last family domicile is located. If the last address of the marriage was in Torrevieja, you will have to go to a notary in Torrevieja to make the divorce procedure. The notary is not of free choice.
The divorce will be formalized in a notarial deed, and this deed will contain on the one hand the declaration of will of both spouses that they want to divorce. On the other hand, the Regulatory Agreement will be attached to the deed.
It is necessary for both spouses to go to the notary personally to sign the notarial deed, and it is not permitted for another person to come on behalf of the notary, even if there is a power of attorney.
The presence of a practicing lawyer is mandatory, who will attend the signing of the notarized deed of divorce in order to ensure that both parties understand the scope of the public document to be signed. The lawyer will advise at all times at every step of the process.
The great advantage of going to the notary public, in the face of traditional divorce by mutual agreement before the Court is time. The speed and agility of this process compared to the traditional one is more than evident. Once an agreement is reached between the spouses, we can have everything ready at the Notary in a matter of days. In court, the delay in the processing of cases will force us to wait months to obtain the same result.
If you want to start the divorce process in Torrevieja or Orihuela Costa, do not hesitate to contact us. In López Morueco Abogados, your law firm in Torrevieja (Los Balcones) and very close to Orihuela Costa, we will advise you in a personalized, transparent and efficient way.
Ruth López Morueco.