You are getting divorced by mutual consent: judicial divorce or notarial divorce?

When a couple decides to divorce by mutual consent, Spanish law offers two main routes to formalize the process: judicial divorce and notarial divorce. Although both methods allow spouses to dissolve their marriage by agreement and without conflict, there are key differences between them that are important to understand in order to make the best decision.

In this article, from IN DIEM Abogados, we explain both options in detail, the advantages and disadvantages of each, and in which cases one or the other will apply. We will also analyze the importance of having advice from a specialized lawyer, as this professional is essential in any type of divorce, even when it is carried out amicably.

This post-separation co-parenting arrangement is the preferred model, provided the right circumstances are in place for its implementation, thereby ensuring that children’s right to maintain a relationship with both parents is effectively upheld.

What is a mutual consent divorce?

Mutual consent divorce is the fastest and least contentious way to end a marriage, as it means both parties agree on the terms of the separation and on how financial and personal matters will be arranged once the divorce is formalized. This type of divorce is much simpler and faster than a contested divorce, which involves a dispute between the spouses that must be resolved in court.

In a mutual consent divorce, both spouses must submit a settlement agreement setting out the terms of the divorce, such as the division of assets, any compensatory maintenance (if applicable), and the use of the family home, among other matters. Once the agreement has been drafted, there are two routes to formalize the divorce: judicial divorce or notarial divorce.

Option 1: Judicial divorce

Judicial divorce is the traditional way to divorce, even when it is by mutual consent. In this case, the settlement agreement must be approved by a judge, who will review that the rights of both parties are respected and, if there are children, that the measures protect their interests.

Advantages of judicial divorce

1. Protection of minors: If the couple has minor children, or adult children with judicially modified capacity, judicial divorce is mandatory. The judge will review the terms of the settlement agreement to ensure the children’s rights are protected and, if any clause fails to do so, may amend it.
2. Necessary procedure in complex situations: Judicial divorce is also necessary if there are contentious elements in the agreement, even if the parties have reached an initial understanding. This may include situations where one spouse is entitled to compensatory maintenance or where there is a need to divide a significant estate.
3. Judicial review: Even if both parties agree on the terms, judicial review can provide greater assurance that the terms are fair and equitable for both. The judge acts as an impartial third party who reviews the entire agreement to ensure there are no abusive or unbalanced clauses.

Disadvantages of judicial divorce

1. Longer duration: Judicial divorce usually takes longer than notarial divorce, as it is necessary to file a petition with the courts, wait for a judge to be assigned, and then for the settlement agreement to be reviewed. Depending on the courts’ workload, this process may take weeks or even months.
2. More formal process: Although it is by mutual consent, court proceedings tend to be more formal and bureaucratic, which can be stressful for some spouses, especially if they are seeking a quick and amicable dissolution of the marriage.

Option 2: Notarial divorce

Notarial divorce, also known as express divorce, was introduced in Spain by the 2015 Voluntary Jurisdiction Act. This process allows couples to divorce quickly and easily before a notary, provided they meet certain requirements.

Requirements for notarial divorce

To opt for notarial divorce, the following conditions must be met:

1. No minor children or adult children with modified capacity: If the couple has minor children, the divorce must be judicial, as only a judge can guarantee the protection of minors.
2. Mutual consent: As with judicial divorce, both parties must agree to all the terms of the divorce, and these must be set out in the settlement agreement.
3. Legal counsel: Although the process takes place before a notary, the law requires both parties to be advised by a lawyer. This professional is responsible for ensuring that the settlement agreement respects the spouses’ rights and that the entire process is carried out in accordance with the law.

Advantages of notarial divorce

1. Speed: Notarial divorce is much faster than judicial divorce. As there is no need to go before a judge, spouses can formalize their divorce in a matter of days, provided they submit all required documentation and the settlement agreement is correctly drafted.
2. Less bureaucracy: As it is carried out before a notary, the process is much more streamlined and less formal than in the courts. This is ideal for couples looking for a quick, hassle-free solution.
3. Greater flexibility: Since there is no need to go to court, couples have more flexibility to schedule appointments and formalize the divorce at a time that suits them best.

Disadvantages of notarial divorce

1. Not applicable in all cases: As mentioned, if the couple has minor children, notarial divorce is not an option. It is also not applicable if there are major disagreements over the division of assets or if one spouse requires compensatory maintenance that has not been accepted by the other.
2. Limited review of the agreement: Unlike a judge, the notary does not have the power to amend the settlement agreement. This means that if one party is not satisfied or if there are clauses that may be problematic in the future, the notary cannot intervene. That is why it is so important for the agreement to be drafted by a specialized lawyer who ensures everything is in order.

When should you opt for a judicial or notarial divorce?

The decision between a judicial divorce and a notarial divorce mainly depends on each couple’s circumstances. Here are some criteria that may help you decide:

• If you have minor children: In this case, judicial divorce is mandatory, as only a judge can review and approve measures relating to custody, visitation, and child support.
• If you do not have minor children and want to speed up the process: If you meet the requirements and both parties agree, notarial divorce is the fastest and simplest option.
• If there are complex assets or substantial estates: In cases where the division of assets is complex or there are disagreements, it is advisable to opt for judicial divorce so that a judge can review the agreements and, if necessary, amend the terms of the settlement agreement.
• If you are looking for flexibility and speed: If both parties agree on all terms and there are no minor children involved, notarial divorce offers the flexibility and speed many couples are looking for.

The importance of a lawyer in both processes

Regardless of whether you decide to opt for a judicial divorce or a notarial divorce, the role of the lawyer is essential in both cases. At IN DIEM Abogados, we specialize in family law and provide comprehensive advice throughout the entire divorce process.

The lawyer not only drafts the settlement agreement, but also acts as a mediator between both parties, ensuring that the spouses’ rights are respected and preventing future conflicts. In addition, in the case of a judicial divorce, the lawyer will file the petition with the courts and ensure that the entire process is carried out in accordance with the law.

In a notarial divorce, although the process is faster and simpler, the lawyer remains indispensable to ensure that the settlement agreement is correctly drafted and that there are no clauses that could be detrimental to one of the parties in the future.

Conclusion: judicial divorce or notarial divorce

In summary, both judicial divorce and notarial divorce are valid options for couples who wish to divorce by mutual consent. The choice between one or the other will depend on each couple’s specific circumstances, especially regarding the existence of minor children and the complexity of the division of assets.

At IN DIEM Abogados, we are here to advise you and support you throughout the entire divorce process, ensuring everything is carried out quickly, fairly, and in accordance with the law. If you are considering divorce, please do not hesitate to contact us to receive the best possible advice and ensure you make the most appropriate decision for your situation.

How can we help you?

At IN DIEM Abogados, we have the best Family Law experts specializing in mutual consent divorce proceedings, ensuring at all times a robust defense and a balance of both clients’ interests.

Contact IN DIEM Abogados 24 hours a day, any day of the week, with no obligation. You can also find more information here.

We guarantee the best possible outcome, whatever your case.

• Personalized, professional service
• Assistance throughout the entire judicial or notarial process
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