Differences between divorce and separation in Spain, What to do?

Dear Sirs, for the past few years I have had problems with my wife, in fact we no longer live together, we do not speak to each other and the marriage has not really worked as such for over the last 4 years. Despite living separate we have not been legally separated or divorced. I would like to know what the difference between separation and divorce in Spain is and what should I do.

Dear reader, thank you for your email, the first issue that needs to be clarified would be to determine which law applies to your divorce or separation, this will depend on several factors: nationality of the spouses, permanent address, if you and your wife are able to reach an agreement and file for a divorce by consent or if it will be a contentious divorce etc.

If Spanish law applies, you must be informed that since the change done in 2005 to the Spanish Civil Code and Civil Procedure Act, ( Ley Enjuiciamiento Civil) it is no longer necessary to be separated prior to applying for divorce and it can be requested directly as long as you have been married for at least three months, there is no need to prove any inappropriate behavior, adultery, abandonment, etc. It is not mandatory to give a reason for a divorce or separation.

If you are still married you must be aware that as stated in article 66 and following of the Spanish Civil Code, the spouses have a series of rights and duties: they must respect and help each other, they must act in the interest of the family, they must live together, be faithful and help each other in sharing the domestic responsibilities and the care and attention of ascendants and descendants under their care.

The Court process for separation and divorce in Spain are quite similar in complexity, cost, length, etc. Also both processes share some of the same effects since in both cases the court will decide over: visitation regime for the non custodial parent, use of the family home, contributions to the marriage debts, maintenance for the children, maintenance between spouses, etc.

The most important differences between divorce and separation are that the legal Court separation does not terminate the marriage, therefore, if you separate you will continue to be married, you can not marry another person, and your spouse may keep certain rights. Although once you have been legally separated, by Spanish Law, the spouses can not interfere in the other’s life and both will be personal and economically independents. In case of separation and reconcile, you should notify the judge who is dealing or who dealt with your separation court case (Article 84 of the Civil Code), and the Order granted will be voided except for the part that affects the children which may be retained if the Court deems it appropriate.

On the contrary, by divorce the marriage ceases completely, that is, you can marry again and in case of reconciliation this will not affect the Divorce Court Order because the divorce has terminated permanently the marriage.

In each case, depending on the particular circumstances it may be advisable to apply for divorce or separation, in general and unless a reconciliation is foreseen or for inheritance or tax reasons (depending on your nationality), we believe that it could be more advisable to apply for the divorce directly.

The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.

White & Baos Abogados – Solicitors
Carlos Baos
Tel: 966 426 185
E-mail: info@white-baos.com
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