At White-Baos Lawyers we have always defended the convenience of trying to reach amicable agreements in cases of marital crisis. Experience shows that a divorce by mutual consent speeds up the process, is cheaper and simplifies the things. In this week’s article we analyse the settlement agreement. Specifically, the validity of a divorce settlement agreement not ratified by the espouses in court.
What is a settlement agreement?.
The regulatory agreement is the document or contract in which two people who are thinking of getting divorced agree on the legal consequences of their break-up. It regulates both their financial and personal relations. If there are children in common, the agreement will also cover matters relating to them.
What is the minimum content of a settlement agreement?.
The exact content of the agreement will depend on the circumstances of each couple. In general, the agreement must regulate the following matters:
– The type of custody of the children. Shared, sole-parent, etc.
– The maintenance allowance.
– Visitations and communication regime with the non-custodial spouse, grandparents, etc. Guardianship and custody of pets, if any.
– The liquidation of the matrimonial property regime (if married in community of property) and the distribution of assets.
– The attribution of the family home.
– Alimony (art. 97) and/or compensatory allowance (art. 1438).
What happens after signing the settlement agreement?.
The next step is to file a petition for divorce by mutual consent before the court. A copy of the settlement agreement will be attached to it. The court will then summon the spouses to ratify it. If one of them changes his/her mind and refuses to ratify it, the proceeding will be terminated. The question that arises in these cases is whether the divorce settlement agreement signed has any validity. And whether the spouse that did not ratify it, can be forced to comply with it or not.
Validity of a divorce settlement agreement not ratified. Spanish Supreme Court.
According to the case law of the Spanish Supreme Court, the settlement agreement signed by the spouses in a divorce by mutual consent is fully valid and effective between the parties. Even if it is not subsequently ratified in court. For this to happen, a number of requirements must be met.
1. The agreed measures must be at the free disposal of the parties. In other words, financial and property agreements are valid. Agreements concerning the children require court approval.
2. Agreements cannot be contrary to public order, morality or the law.
3. The circumstances considered at the time the agreement was signed must not have changed significantly.
4. There must not have been any defect of consent at the time of signing the agreement.
In other words, without the ratification of both spouses, the divorce by mutual consent procedure will be closed. But the spouse who ratified the agreement may demand compliance of the financial and property agreements included in the signed agreement through a contentious procedure.
Conclusions: Beware of what you sign.
A divorce settlement agreement not ratified in court, can produce full effects in the economic and patrimonial sphere of the spouses. Are you thinking of getting divorced?. At White-Baos Lawyers we are experts in Family Law, and we can help you. Do not hesitate to contact us. We will study your case and offer you expert legal advice.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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