In our blog we have already talked about the differences between divorce and separation, and we have also analyzed the differences between divorce by mutual consent and contentious divorce.
In this post we are going to focus on a basic instrument without which a marital breakup cannot be materialized: the regulatory agreement.
What is it, what is its content and how does it work in Spain and in Catalonia?
There are differences between one case and the other that are worth knowing.
We give you all the keys to go to your first appointment fully informed and with a clear idea of what your needs are.
What is the divorce or separation agreement?
The regulatory agreement of the divorce or separation agreement is the document that contains the main rules that will govern the relationship of the couple in the future, both in case of temporary (separation) or definitive (divorce) breakup.
This document must have a minimum content and constitutes the cornerstone of any separation or divorce process: on its outcome will depend the quality of the future relationship between the parties, and it is very important to avoid forced agreements that are not adapted to reality or that may be unfair to one of the partners. Otherwise, the quarrels will soon turn into a new conflict that will end up in a new negotiation or in court.
This is the minimum content of the regulatory agreement of the divorce or separation:
- The parental authority, the custody of the children and the regime of communication, stay and visits of the children with the parent who does not habitually live with them.
- The attribution of the use of the family home and the family trousseau.
- Alimony.
- The liquidation of community propertythe economic regime of the marriage, when applicable.
- Compensatory pension.
- Dissolution of marriage.
It should be added that it is logical that, after a time of cohabitation in common and the existence of patrimonial and personal ties, it becomes necessary to establish a concrete and tailor-made way of separating the couple, distributing rights and duties. The vocation of the text that regulates this new stage of the relationship is of permanence: the aim is that its content remains in force as long as possible, although, of course, when circumstances change, it may become necessary to modify what was agreed at the beginning.
It is therefore important to find the right balance between flexibility (for the easily changeable) and clarity and concreteness (for the key issues, which are less susceptible to change).
How is the regulatory agreement drawn up in Spain?
The Spanish Civil Code allows the couple to decide (always within the limits of legality) how to regulate their lives separately.
In fact, it is much better for the parties (together with a lawyer) to reach an agreement on the regulatory agreement, so that the judge only has to validate what has already been negotiated.
For this, it is necessary that this agreement is drawn up by a lawyer (who must take into account the will of the parties and try to reach a fair and lasting agreement).
Then, the drafted agreement will be validated by the judge.
In case of express divorce (a modality even more specific than the divorce by mutual agreement for very simple cases, always without minor children) it can be validated by a notary. Therefore, the agreement must be kept within certain limits and there is a control of legality with respect to the content of the agreement. In particular, it is very important not to accept an agreement that is detrimental to one of the parties, as well as to always look after the interests of the minor, represented by the Public Prosecutor’s Office.
What happens when there is no agreement?
In those cases in which an amicable agreement is not reached, it will be the judge who will determine the measures to be included in the agreement, taking into account the requests of the parties and putting the interests of the minor (if any) first.
In fact, children over 12 years of age may be heard in the process.
In this process it will not be possible to share lawyer (each of the parts of the couple will go with its own, in defense of its interests), with what the process is complicated and expensive.
Usually, the solution dictated by the judge will not be the most adequate: it will hardly be prepared with the same care as the one that can be given by the couple themselves with the assistance of a common lawyer who mediates and negotiates with both parties in mind. In any case, all the decisions taken in the settlement agreement (whether negotiated or not) can be modified if circumstances change, and the judge’s decision with respect to any point of the settlement agreement drafted by the judge can be appealed.
On the other hand, in case of breach of the agreement by either parent, this can be denounced and measures such as fines or enforcement can be taken.
Sometimes it is possible to modify the agreement based on non-compliance, and it can even lead to a modification of custody or even parental authority (in the most serious cases).
The regulatory agreement in Catalonia:
The case of Catalonia is particular, as it has its own Civil Code.
Specifically, Book II of the Civil Code of Catalonia (CCCat.) states that the petition for divorce, judicial separation or the adoption or modification of measures regulating the consequences of the nullity of the marriage -or if one of them does it with the consent of the other- must be accompanied by a proposal for a regulatory agreement, where the aspects referred to in Article 233-2 are determined. This article contains the following minimum content:
- A parenting plan, in accordance with the provisions of article 233-9.
- The food to be provided, both for ordinary and extraordinary needs, indicating the periodicity, method of payment, criteria for updating and, if provided for, guarantees.
- If applicable, the regime of personal relations with grandparents and siblings who do not live in the same household.
- The compensatory benefit attributed to one of the spouses, indicating the method of payment and, if applicable, the duration, the criteria for updating and the guarantees.
- The attribution or distribution of the use of the family home with its furnishings.
- Economic compensation for work-related reasons.
- The liquidation of the matrimonial property regime and the division of assets in ordinary undivided community property.
- In addition, the spouses may also agree in the agreement to provide alimony for children of legal age or emancipated children who have no financial resources of their own.
You may be interested in:
- Guide to joint custody in the event of divorce or separation: everything you need to know
- Shared custody in Catalonia
- Aspects valued by the judge when awarding joint custody
