SEPARATION AND DIVORCE




THE DIFFERENCE BETWEEN SEPARATION AND DIVORCE:

SEPARATION means an end to living with your partner, but you continue to be married, so the bond of matrimony still exists, that would only disappear completely with DIVORCE.




SEPARATION CAN BE:

1. IN FACT: This is the time of separation when the couple has agreed to separate, or one of them has decided unilaterally. The separation “in fact” does not allow the liquidation of the matrimonial economical regime; therefore it is advisable to embark on a judicial separation with the aim to regulate both the patrimonial aspects of the marriage as well as the personal (children).

2. JUDICIAL: This type of separation can be:

  a.) BY MUTUAL AGREEMENT: The only requisite is that three months have passed since the celebration of the marriage. A separation claim must be presented where the couple jointly manifest their conformity with the end of the cohabitation, and should be accompanied by an AMICABLE SEPARATION AGREEMENT, where they would establish their agreements in relation to the guard and custody of their children, child maintenance, visiting regime, compensatory alimony, use of the family home, etc.
  b.) CONTESTED: If there is no possibility of reaching an agreement in relation to the separation, we must refer to the contested divorce route. In this case the divorce claim should not be presented accompanied by the said amicable divorce agreement, as it would be the judge who would decide on how to regulate the patrimonial and personal relations of the couple, according to the evidence that is presented throughout the judicial procedure.




El DIVORCE:

DIVORCE signifies the definitive dissolution of matrimonial bond, which allows the couple to contract civil matrimony again. Currently, it is not necessary to first attend a separation and later a divorce, but it is possible to directly attend a divorce to put an end to the marriage.

According to article 85 of civil law: "a marriage is dissolved, whatsoever its form and time of celebration, by the death or declaration of death of one of the couple, or by divorce".


Likewise, we distinguish two different possibilities:

1. DIVORCE PETITION BY BOTH PARTIES ( or by one of them with the consent of the other):

This is a simple, fast procedure because you have conformity between the parties. As in a separation, an AMICABLE AGREEMENT would be established, where all aspects of the matrimony would be regulated. The only requisite is that three months have passed since the celebration of the matrimony.

A claim should be presented at court, accompanied by the amicable agreement.

2. DIVORCE BY PETITION OF ONE OF THE PARTIES= ( contested divorce):

As in a separation, this type of procedure is begun when no possibility of reaching an agreement exists between the couple when regulating the consequences of the marriage.

It should not be accompanied by an amicable agreement, the only necessity being that three months have passed since the celebration of the marriage, and finally being resolved by the judge.

Observation: The three month time period from celebrating the marriage to begin a separation or divorce, would have the logical exception if risk to life, physical integrity, freedom, moral integrity or sexual freedom and indemnity is accredited of the party that applies for separation or divorce, or their common children.





THE AMICABLE AGREEMENT

The AMICABLE AGREEMENT, is a document signed by the couple, in virtue of which, the effects and measures that the parties have freely agreed are stipulated, with the aim of regulating their separation or divorce. This agreement must be later approved by a judge.

In principle the autonomy of the parties is respected in what they have freely expressed in the agreement, although some MINIMUMS exist which should be respected and are regulated in article 90 of civil law, such as:

• The care of children subject to the parental responsibility of both parties.
• The visiting regime.
• The attribution of the use if the property.
• The contribution to the matrimonial charges and alimentation.
• The liquidation, when it proceeds of the economical regime of the matrimony.
• The Alimony, in its case.