Guide to Divorce by Mutual Agreement Without Children or Common Property

In our legal system, there are different divorce options that adapt to the particular circumstances of each couple. Thus, the fact that there are children in the marriage or not, or whether the spouses decide to act by mutual agreement or not, are factors that determine the availability of alternatives.

In the case of a couple that does not have children or property in common, and who also acts by mutual agreement , there are two divorce options that are very simple to process, one through judicial means and the other through notarial means.

In this article we are going to analyze in depth how to process a divorce by mutual agreement without children or common property.

What options exist for divorce by mutual agreement without children or common property?

As a result of the reform carried out in the Civil Code , there is a new option for divorce by notarial means that is added to the alternatives for divorce in court.

This type of divorce , also known as express divorce , is applicable only in cases where the spouses act by mutual agreement and there are no children involved who are non-emancipated minors or adults for whom support measures have been judicially established. attributed to their parents.

In addition to notarial means, when these conditions are met, the divorce can also be processed judicially before the lawyer of the Administration of Justice , without the need for a judge to intervene. This is a type of simplified divorce that is resolved in a very short period of time .

In either case, divorce by mutual agreement revolves around the key figure of the regulatory agreement , which is the document in which the spouses record the agreements they have reached regarding the effects of the divorce.

In summary, if there are no children in the marriage or common property, the spouses who act by mutual agreement will be able to process their divorce: 

  1. By notarial means , formalizing in a public deed the regulatory agreement that must be presented to the notary.
  2. Through judicial means , before the lawyer of the Administration of Justice, also presenting a regulatory agreement that he must approve.
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What content should the regulatory agreement have?

As we have seen, whatever the route chosen for a divorce by mutual agreement, the spouses must present a proposal for a regulatory agreement that contemplates the property effects that the divorce should have.

The content of the regulatory agreement is that established in Civil Code , although it is a general content applicable to any divorce by mutual agreement, which is why the necessary provisions are included to regulate the obligations of the spouses with respect to children.

However, in the case of a divorce by mutual agreement without children involved or property in common, the regulatory agreement must provide for the following aspects: 

  1. The destination of the companion animals , if any, valuing both the interest of both spouses and the well-being of the animal. Coexistence and care times will also have to be regulated, as well as the financial burdens associated with caring for the animal.
  2. The contribution to the expenses of the marriage , that is, to the expenses derived from the marriage that must be borne by both spouses. Even if there are no common assets of the marriage, there may be some expenses that are still pending to be paid and are attributable to both spouses, such as litigation expenses (procedural expenses).
  3. The liquidation of the matrimonial property regime , when applicable. Even if there are no common assets, it may be necessary due to marital debts, debts of one spouse to another, etc. In reality, this procedure can be done during the divorce or left for another time, but it is best to do it at the same time.
  4. The compensatory pension that may be payable to one of the spouses, pursuant of the Civil Code, in the event that they have been left in a situation of economic imbalance with respect to the other spouse, and their situation has worsened as a result of the divorce in relation with the one he had during the marriage.
  5. The attribution of the use of the home and family trousseau .
    • Even if there are no common assets, there are always objects that have been used by both in the family home, such as furniture, utensils and other things of little value.
    • In relation to the family home, although it is not a common property in this case, it is possible to reach an agreement on the temporary attribution of use to the non-owning spouse, if applicable, if both spouses deem it appropriate in light of personal circumstances. each. It may also be a rental home and the spouses may want to clarify who is going to continue renting and who is going to leave.
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Any agreement reached in relation to issues that affect both of them may be included in the regulatory agreement.

What does divorce without children and by mutual agreement through notarial means consist of?

Simplified divorce by notarial means is regulated in Notarial Law , by virtue of which, the spouses will present to the notary a proposal for a regulatory agreement that must be formalized in a public deed and signed by both in the same act.

For a notarial divorce, it is necessary to act assisted by a practicing lawyer, although both spouses can share the services of the same professional. The intervention of a solicitor is not necessary.

In matters not provided for by the Notarial Law, the regulations of the Civil Code will apply , from which the following can be deduced:

  • At least 3 months must have passed since the celebration of the marriage.
  • The public deed that formalizes the regulatory agreement will also produce the dissolution of the matrimonial property regime.
  • The effects of the divorce will occur from the moment the consent of both spouses is expressed in a public deed.

What does divorce without children and by mutual agreement through judicial means consist of?

In order to process the divorce through judicial means before the lawyer of the Administration of Justice , it will be necessary for the spouses to act assisted by a lawyer and represented by a solicitor, although they may share the services of the same professionals if they so wish.

Divorce by mutual agreement through judicial means is regulated in Civil Procedure Law , and may be initiated by both spouses jointly or by one of them with the consent of the other when, in any case, at least 3 years have elapsed. months from the celebration of the marriage. 

The procedure will begin with the request or demand for divorce before the family court or court of first instance that is competent, accompanied by the proposed regulatory agreement and a certification of the registration of the marriage.

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Once the claim is admitted , the lawyer from the Administration of Justice will summon the parties in the following 3 days so that they can separately ratify their request.

If the parties are ratified, and the lawyer from the Administration of Justice does not observe that the regulatory agreement is clearly detrimental to any of the spouses, he will issue a decree ruling on the agreement and declaring the divorce. 

If, on the other hand, it considers that there may be serious harm to one of the parties, it will warn the spouses and terminate the procedure, leaving the process before the judge as the only way to process the divorce. The same will happen if one of the spouses does not ratify his request.

The final decree that formalizes the regulatory agreement will produce the dissolution of the matrimonial property regime (of the Civil Code), and the divorce will take effect from the moment the resolution becomes final, unless the spouses state their will for it to have full effects from the signature of both ratifying the petition.

Can the processing of a contentious divorce be changed to one by mutual agreement?

The law favors processing by mutual agreement even if the spouses have initiated the divorce procedure through litigation .

In that sense, Civil Procedure Law allows a divorce initiated as a contentious divorce to be transformed during the procedure into a divorce by mutual agreement.

What are the advantages of a divorce by mutual agreement?

As we have seen, the processing of a divorce in which there are no minor children affected or older children in need of special protection, and in which there are no assets to be distributed, is extremely simple if the route of mutual agreement is chosen, whether It is judicial as if it were notarial.

In addition, there are other advantages that should be taken into account:

  • The parties can share a lawyer and a solicitor , if they choose the judicial route, or a lawyer, if they choose the notarial route, with the consequent economic cost savings that this entails.
  • There is great freedom for the spouses to agree on what they deem appropriate in the regulatory agreement, and any decision taken by them by common agreement will always be more advantageous and appropriate to their interests than the one a judge can make in a contentious procedure.
  • The procedures are considerably simplified, so the divorce can be resolved in a few days, unlike the lengthy process that a contentious divorce can become.
  • The emotional cost is also lower for both, since conflicts and discussions, and the wear and tear of a long process, are avoided.

For all these reasons, it is advisable to consider the option of a divorce by mutual agreement , even if this means giving up a little with respect to the initial intentions and not embarking on a long and exhausting process in which both parties can lose more.

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