13 February 2018, Alberto Perez Cedillo

Divorce by consent before a Notary Public

One of the many improvements introduced by Spanish Law 15/2015 of 2 July on Voluntary jurisdiction is the possibility to divorce (or legally separate) before a Notary Public by means of a Deed. However, it is required that the spouses are divorcing by consent and that they do not have children under the age of 18.

Spouses can choose to sign before any Notary Public located at their last common place of residence or the place of residence of either one of them. The Deed will contain a declaration by the spouses confirming their wish to divorce and will also incorporate the contents of any divorce agreement that the parties may have reached. This may include any spousal maintenance payable as well as the dissolution of the matrimonial economic regime and distribution of property. The legal provisions that apply to this kind of agreements are the same applicable to agreements submitted for the Court’s approval.

Spouses must act in person and are unable to give power of representation to a third party. They shall both attend the Notary Public to sign the Deed with their respective lawyers, who will also have to sign to leave record of their presence. The legislator introduces this requirement to ensure that the parties have had the appropriate legal advice before signing the Deed.

The Notary public will have to consider the contents of the agreement to ensure that they are in compliance with the law and that they are not too detrimental to either of the parties.

Moreover, if any of the terms agreed affect any children of age or emancipated minors of the marriage, they must give their consent if they lack income and live in the former matrimonial home. This consent is essential and therefore they will have to be present at the time of signature, either personally or by representation.

In cases where both spouses have reached an overall agreement on the terms of their divorce, it is key to remember that they may avoid court delays and uncertainty, by arranging its signature before a Notary public. It will just be a matter of preparing the Deed and booking an appointment with the notary. It will definitely involve additional costs that would not arise if proceedings take place before the court, but it is undoubtedly a much quicker option. The court system will also benefit as hopefully it should relieve their work load.