Guide to Separating from a De Facto Partner: Procedures and Considerations

Are you considering breaking up with your common-law partner and don’t know what you should do? Let’s solve your doubts.

You should know that there is no state law that regulates the separation of a common-law couple , unlike the separation and divorce of a marriage.

However, some Autonomous Communities have their own regulations, so you should obtain appropriate advice .

Below we explain, in general terms, the procedures for the separation of a de facto couple.

What to do to break up a common-law relationship?

One of the doubts that arise is the procedure to follow, since, as you are not married, you cannot initiate a judicial process for divorce or separation .

That is to say, there is a process of marital separation for married spouses, but  there is no judicial procedure as such for the separation of de facto couples .

In the breakup of a de facto couple, on the one hand, decisions are made about parent-child relationships (parent-child relationships) and, on the other, those corresponding to the liquidation of the common property .

Procedures to resolve parent-child relationships

It is obvious that if the couple does not have children together , they will not have to take any action in this regard.

However, the obligations of parents with respect to children are the same in the case of marriage or de facto partnership .

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The difference is in the procedure to follow . In the case of marriage, separation or divorce procedure and, in the case of de facto couples, it is the judicial procedure for adopting parent-child measures .

This process of adopting parent-child measures may be initiated by mutual agreement or at the request of one of the cohabitants.

The most advisable thing is to reach an agreement with your partner to avoid making the process longer, more costly , and causing emotional tensions.

If you do not reach an agreement with your partner on parent-child measures, you must initiate a contentious procedure.

Do not forget that the best interest of the minor will always take precedence over any other legitimate interest that may exist.

1. Procedure for mutual agreement to adopt parent-child measures

If both parties act by mutual agreement, a single lawsuit will be filed .

In this case, you will be represented by a single attorney and assisted by the same lawyer , which reduces the cost of the procedure .

The demand must be accompanied by the regulatory agreement in which the following agreements are stipulated:

  • Guardianship and custody of children . You can agree that individual custody be awarded to one of the parents, or shared custody to both parents.
  • Joint custody alternation regime . If you agree on shared custody, you will have to agree on the regime of alternating cohabitation with both parents and the cohabitation address.
  • Regime of visits , communication and stay of the non-custodial parent . The time in which the parent who does not have custody of the children can visit them, communicate with them and have them in their company will be encouraged.
  • Attribution of the use of the family home . In the event of agreeing on individual custody, the use of the family home is attributed to the children and custodian parent. If you agree on shared custody, you can agree that the use of the home is attributed to the cohabitant who has fewer financial resources.
  • Alimony for joint children . That is, those expenses that are predictable, periodic and necessary to support the children. Among them: food, decent housing, medical assistance, school expenses (tuition, uniform, books, dining room, transportation), personal belongings, health care… Don’t forget that alimony does NOT include extraordinary expenses .
  • The compensatory benefit in favor of the cohabitant who suffers economic imbalance . Although there is no state regulation on compensatory pension, in the case of common-law couples, cohabitants can agree on it. You can also ask for one of them, as we will tell you later.
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2. Contentious procedure for adopting parent-child measures

If you cannot reach an agreement with your partner, you will have to initiate a contentious procedure for the adoption of parent-child measures.

In this case, each member of the couple will have their own lawyer and attorney.

The lawyer will draft your claim and request the measures you want, always ensuring the best interest and benefit of the minors.

Once the demand has been received, the other cohabiting party will present a written response . In said document, you may request the maternal-filial measures you consider, also based on the benefit of the minors.

Once both parties have been heard in the trial , the Judge decides the measures , prioritizing the best interests of the minor, which will govern after the breakup . We repeat “the best interest or benefit of the minor” because it is the principle that parents must always take into account when faced with any breakup with minor children.

In case of urgency or need, provisional measures can be requested that will apply for the duration of the process.

Can I request compensatory pension in the contentious procedure?

Although there is no national law that regulates compensatory pensions, as we have told you before, you can request it .

According to the Supreme Court , to agree on the compensatory pension the following assumptions must occur :

  • Increase in the assets of one of the cohabitants.
  • Correlative impoverishment in the assets of the person requesting the benefit.
  • Lack of cause that justifies the enrichment.

Some Autonomous Communities do regulate the compensatory pension for the most disadvantaged partner, when the union has been formalized in a public deed .

See also  Navigating Contentious Divorce: Procedures, Pitfalls, and Paths to Resolution

Procedures to liquidate the common assets of a de facto couple

There is no economic-marital regime between the de facto couple , as is the case with marriage.

However, the de facto couple may agree on the property relations derived from cohabitation, as well as the economic effects in the event of a breakup .

If you have formalized an agreement, you will have to comply with what was agreed.

In general terms, the assets acquired by the de facto couple are assets that belong in half (in equal parts or in undivided shares ) to the cohabitants.

In the absence of prior agreement , there may be two options, although everything depends on each specific case:

  1. Public deed before a Notary. If you agree, you simply have to go to a Notary to sign before a Notary the termination of the condominium of the assets and allocation to each cohabitant. Also in some Autonomous Communities, if there is no agreement, you can go to the Notary to notify the other cohabitant of the decision to break up. The way to liquidate or allocate common assets before a Notary can be done in different ways, depending on the assumptions.
  2. Judicial procedure for division of common property . In the absence of agreement, any of the cohabitants may initiate a judicial procedure for the division of common property .

Whatever your situation, we advise you to seek advice from a good family lawyer to help you make the right decisions.

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