Facing a breakup of a couple is never a pleasant situation, and it is often painful: the person may feel that his or her life is falling apart, especially when there are legal ties or children in common. That is why it is so important to know what options exist so that the situation can be put in order as soon as possible and in a satisfactory way for all parties involved.
One of the first things we must be clear about is that a separation is not the same as a divorce, and that there are different ways to legally process both ways.
In this post I will try to shed some light on these issues so that you can make an informed decision. If you have any doubts please contact without obligation and we will guide you.
We are lawyers specialized in divorces in Barcelona. When there is a marriage bond the situation is undoubtedly more complex than when there is no formal bond.
It is advisable in these cases to have legal advice before making any decision, so that uncertainty or lack of knowledge of your rights does not become an added problem.
Keep in mind that the law covers all scenarios that may arise, and that a lawyer can help to avoid problems between the parties and to find the right balance, especially if there are children involved.
Differences between separation and divorce
The first thing to be clear is that separation is not the same as divorce.
In short, it can be said that separation implies the effective cessation of the legally recognized cohabitation of both spouses, while divorce is a further (and definitive) step: the dissolution of the marital relationship.
In both cases, separation and divorce, the end of the relationship generates patrimonial and personal consequences: economic measures, measures of guardianship and custody of minor children of the marriage… But there are some big and very important differences between one case and the other.
Marital Separation
In the case of separation, the first thing to be clear is that there is no dissolution of the marital bond, which remains intact.
In addition, in order to speak of legal separation, it is necessary a sentence that fixes certain measures that produce effects in front of third parties.
Another case is that of de facto separation, in which no court proceedings have been held to formalize this new reality.
In the case of separation, the spouses cannot remarry, since the previous marriage bond continues to exist.
Divorce
On the contrary, when we speak of divorce we speak of the dissolution of the marriage bond, so its effects are broader.
After the divorce the spouses can remarry each other or with other persons. Divorced spouses may remarry civilly, but not in the Church.
In order to remarry in the Church, it would be necessary to request ecclesiastical nullity.
Each religion, in general, will impose its own conditions for annulling the marriage.
Aspects that do not change
Regarding a possible inheritance, both separation and divorce prevent the other spouse from inheriting if there is no will (abintestado) and, therefore, that he/she has the right to the legitimate share.
With the separation there are also measures regarding the care of the children, as well as their guardianship and custody, visitation, communication and stay, exercise of parental authority, maintenance expenses, use of the home… These measures are also adopted in case of divorce, and when the situation changes from separation to divorce, they can be kept intact, or modified at the request of either party in the event of a substantial change in the circumstances.
Separation and divorce proceedings and their consequences
Regarding the separation or divorce proceedings and their consequences, we can say that there are two types of separation or divorce: mutual agreement and contentious.
The difference lies in the fact that in the case of separation or divorce by mutual agreement, an agreement is reached by both spouses, without the need for the judge to intervene in the regulation of the new cohabitation separately.
In the contentious case this is not possible, either because one of the parties does not want the separation or divorce, or because no agreement is reached as to the legal consequences of this new reality (distribution of assets, custody…).
Mutual agreement procedure
In the case of the procedure of mutual agreement, the spouses, accompanied by their lawyer and procurator (who can be common and share the expenses between both spouses) will present before the judge a regulatory agreement elaborated jointly, as well as the corresponding lawsuit of separation or divorce of mutual agreement.
Thus, the judge will only have to approve the agreement and to dictate sentence recognizing the new situation of both parts. This is the simplest, fastest and most economical way.
Contentious proceedings
As for the contentious procedure, this occurs when, both in case of separation or divorce, there is no agreement between the parties, both in relation to the modification of the sentimental relationship of the parties and in relation to the measures to regulate this new cohabitation separately.
Thus, if the mutual agreement is not reached, it will have to be the judge the one who fixes the measures derived from the declaration of separation or divorce according to the requests made and justified by each spouse.
In these cases, each party must have a lawyer and a solicitor, without being able to share the expenses.
Family mediation
There is an intermediate way: family mediation. Through a family mediation procedure, with the support of a professional mediator, an agreement between the parties will be sought in order to transform a contentious separation or divorce procedure into a mutual agreement.
What measures are regulated in the separation or divorce?
Both in the divorce and in the separation, whether or not there is a previous agreement, the following measures must necessarily be regulated:
- Parental custody of minors
- Guardianship and custody of minor children
- Visitation and communication with minor children
- Use and enjoyment of the family home
- Alimony in favor of children of both spouses
- Compensatory pension
- Pension regulated in article 1438 of the Civil Code in the separation of property regime.
- Contribution to marriage expenses
As for the effects of the filing of these lawsuits, the obligation of cohabitation automatically disappears and the consents and powers of attorney that either of the spouses may have granted in favor of the other are revoked.
It is not necessary to allege any cause to request the separation or divorce: the only legal requirement is that three months have passed since the celebration of the marriage, unless there is a risk for the life, moral or sexual physical integrity of the spouse who requests it or of the children of the marriage.
If you need help in any procedure related to Family Law, contact us without obligation.
