Understanding De Facto Separation: Contrasts with Legal Separation and Impact

What is the difference between de facto separation and legal separation? This is a very common question to which we answer with this post.

De facto separation is one that occurs when the spouses break the marital coexistence , without going to the Court or a Notary, if applicable.

Spouses can decide to end their life together but maintain the marriage bond , this is a de facto separation.

De facto separation and legal separation

Based on what we just said, you may think that de facto separation is the same as legal separation, but this is not the case.

In both de facto separation and legal separation, the spouses put an end to marital coexistence, although the marital bond remains.

Below we explain some of the differences between these two forms of marital separation :

Regulation

  • De facto separation is not regulated in the family Code as a way to end the coexistence between the husband and wife .
  • Legal separation is regulated in the family Code.
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Processing

  • De facto separation occurs by agreement of the spouses, or by imposition of one of them, without requesting it from a Court or a Notary. This separation will be maintained for as long as the spouses want , until they decide to formalize the marital breakup before a Court or Notary.
  • In legal separation you must request a Court or a Notary to end the marriage .

Regulatory agreement

The regulatory agreement is a contract entered into between the spouses that does not require judicial approval. It is about agreeing on the rules that will govern the marriage after separation ( guardianship and custody , visitation regime , alimony …).

  • In de facto separation it is not necessary to make a regulatory agreement, but it is very convenient.
  • In judicial separation by mutual agreement, you must present a regulatory agreement, which must be approved judicially.

Reconciliation

  • De facto separated spouses may be reconciled at any time.
  • Legally separated spouses must bring the reconciliation to the attention of the Judge who processed the judicial separation.

Economic matrimonial regime

  • In de facto separation, the spouses maintain the economic regime of their marriage .
  • In legal or judicial separation, the Judge or Notary, if applicable, put an end to the economic regime that regulated the marriage.

What happens if I want to separate in fact and have a community property?

If the spouses agree to a de facto separation, the community property can cause significant problems.

Even if the spouses live separated in fact, the community property will remain in force since it is not liquidated by either a Judge or a Notary.

That is, if there are marital assets, they will be liable for the debts incurred by either spouse after the de facto separation.

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The solution to avoid these problems , depending on whether or not there is an agreement between the spouses, may be:

  1. If there is an agreement between the spouses , sign marriage agreements and liquidation of the community property before a Notary . In the regulatory agreement that you sign with your spouse, you must include a clause relating to the liquidation of marital property.
  2. In the absence of an agreement , after 1 year has elapsed since the de facto separation, any spouse may judicially request the liquidation of the community property.

The community property will also be concluded by judicial decision, at the request of one of the spouses, in any of the following cases:

3. Having been de facto separated for more than a year by mutual agreement or by abandonment of the home.

Effects of de facto separation

Once de facto separation has been decided or imposed by one of the spouses, it produces, among others, the following effects:

Effects of de facto separation on parent-child relationships

1.- Destruction of the presumption of paternity of the husband

That is, children born 300 days after the de facto separation of the spouses are not presumed to be children of the husband.

2.- Parental Power in favor of the spouse with whom the child lives

If the spouses live separately, parental authority will be exercised by the spouse with whom the child lives.

However, the other may request the Judge to exercise jointly or distribute among the parents the functions of parental authority.

3.- Judicial grant of emancipation of children over 16 years of age

The child over 16 years of age may request the Judge to grant him or her emancipation , when the parents are de facto separated.

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Parental consent will not be necessary, they will only be heard.

Effects of de facto separation in matters of inheritance

In matters of inheritance , the widowed spouse has hereditary rights recognized by law.

However, de facto separation deprives the widowed spouse of the hereditary rights that he or she may have in the inheritance of the deceased spouse.

If you have made a will before the de facto separation, we recommend that you make a new will, to avoid conflicts.

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