Facing a break-up is never a pleasant situation, and it is often painful: one can feel that their life is coming down, especially when there are legal ties or joint children. That is why it is so important to know what options exist, so that the situation could be arranged as soon as possible and in a manner that would be satisfactory to all the parties involved. One of the first things that we must have clear is that separation is not the same as divorce, and that there are different legal procedures for each of these arrangements. In this post, I will try to shed some light on these issues so that you could make a studied decision. If you have any further questions, feel free to contact me without any obligation, and I will guide you.
When there is an official marriage bond, the situation is undoubtedly much more complex than in the case of non-formal relationship. In these cases, it is advisable to receive legal advice before making any decision, so that the uncertainty or lack of knowledge about your rights wouldn’t turn into another problem. Keep in mind that the law covers all situations that may arise, and that a lawyer can help avoid problems between the parties and find the right balance, especially if there are children involved.
Differences between separation and divorce
The first thing to make clear is that separation is not the same as divorce. In short, it can be said that separation implies a legally recognized cessation of the cohabitation of both spouses, while divorce is one more step (and the final one): the dissolution of the marriage bond. Divorced spouses can contract a new civil marriage, but not by the Church. To be able to remarry by the Church, an ecclesiastical nullity must be requested. Each religion, in general, will impose its own conditions to annul the marriage.
In both cases, separation or divorce, the end of the relationship generates property and personal consequences: economic measures, custody measures for joint non-adult children… But there are some very important differences between one situation and the other.
In the case of separation, the first thing that must be made clear is that there is no dissolution of the marriage bond: this remains intact. In addition, to speak of legal separation, it is necessary an official sentence that sets certain measures effective for third parties. A different case is that of separation de facto that hasn’t been certified by a judge to be formalized.
On the contrary, when we speak of a divorce, we talk about the dissolution of the marriage bond, so its effects are broader. After the divorce, the spouses can remarry each other or other people. In the case of separation, this is not possible, given that the marriage bond is still effective.
As for possible inheritance issues, both separation and divorce prevent the other spouse from inheriting from the other spouse, unless there is a testament (abintestato) that would legitimate the inheritance.
In the case of a separation, measures are also taken regarding the care of the children, as well as their custody, visitation, communication and stay, parental authority, maintenance expenses, use of the home… Such measures are also taken in the case of divorce. When a separation becomes a divorce, these may remain the same or be modified at the request of either party in the event of a substantial change of circumstances.
Separation and divorce proceedings and their consequences
Regarding separation or divorce proceedings and their consequences, we can say that there are two types of separation or divorce: one of mutual agreement and a contentious one. The difference is that, in the first case, an agreement is achieved by both spouses, without the need for a judge to intervene in the regulation of the new, separate cohabitation. In the second case, this is not possible, either because one of the parties doesn’t want a separation or divorce, or because no agreement is reached regarding the legal consequences of that new reality (distribution of property, custody…)
In the case of mutual agreement, the spouses, accompanied by their lawyers and solicitors (which can be shared, and the expenses are covered by both spouses) will present before the judge a regulatory agreement drawn up jointly, as well as the corresponding claim for a separation or a mutual divorce agreement. Thus, the judge will only have to approve the agreement and issue a sentence recognizing the new situation of both parties. It is the easiest, fastest and most economical way.
As for the contentious procedure, this occurs when, both in the case of separation and divorce, there is no agreement between the parties, both with regard to the actual change in the sentimental status of the parties and in relation to the measures for regulating this new, separate coexistence. In this way, if mutual agreement is not reached, it will have to be the judge who would set the measures derived from the declaration of separation or divorce based on the requests made and justified by each spouse. In such cases, each party must have a lawyer and an attorney, without sharing the expenses.
There is a middle way: mediation, which I will speak about in future entries.
What measures are regulated in the separation or divorce?
In the case of divorce or separation, whether or not there is a prior agreement, the following measures must necessarily be regulated:
- Parental authority of minors
- Child care and custody of minor children
- Visitation and contact arrangements with minor children
- Use of the family home
- Alimony in favour of the joint children
- Compensatory allowance
- Pension regulated in article 1438 of the Civil Code in the regime of separation of property
- Contribution to the charges of marriage
Regarding the effects of the presentation of these claims, the obligation of cohabitation disappears automatically, and the consents and powers that either of the spouses has granted in favour of the other are withdrawn. On the other hand, it is not necessary to claim any cause to request separation or divorce: the only legal requirement is that three months have passed since the marriage was contracted, unless there is a risk to life, moral or physical integrity of the spouse who requests the change, or that of the joint children of the marriage.
If you need help in any procedure related to Family Law, contact me without any commitment.