Separating or divorcing in Spain can be done by mutual agreement, which is faster and cheaper, or in a contested way, when there is no understanding and the judge decides. In a mutual-agreement divorce both spouses sign a settlement agreement covering custody, maintenance and use of the home. Today it is enough for one of the two to request it in order to dissolve the marriage.
Divorce Lawyers in Santander
Bufete Bermejo Martínez y Asociados
At BBM Abogados we understand that going through the breakdown of a marriage is one of the most difficult times of your life. If you are looking for a divorce lawyer in Santander, our firm offers you a solid track record since 1990 to handle your case with the sensitivity, speed and efficiency your situation demands. We take care of all the legal formalities so that you can focus on your wellbeing and that of your loved ones, ensuring that every step strictly complies with the family law in force.
Are separation and divorce the same thing?
No, they are not the same. It is essential to understand the difference between these two terms, so that if any difficulty arises during the marriage, we can choose the best option. It is also important to know that, depending on the option chosen, the effects will be different.
That being so, we find that separation does not put an end to the marriage, that is, the marital bond remains intact between the spouses. This arrangement only entails the ending of cohabitation between them.
Divorce, on the other hand, does dissolve the marital bond, and the same fate befalls the matrimonial financial regime. Unlike separation, after divorce the spouses can marry again.
In both cases, a judgment declaring it is required (except in de facto separation). Likewise, both divorce and legal separation prevent the other spouse from inheriting without a will or from having a right to the reserved share.
Our lawyers will advise you to determine clearly the implications of one arrangement or the other, so that you can decide which alternative is most appropriate for your case.
What is divorce?
Divorce is, put simply, the dissolution of the marital bond that the spouses once entered into. The law sets a limitation: at least three months must have passed since the marriage before divorce can be requested.
For it to take full effect, it must be declared by a judge (or a notary, subject to certain conditions) by means of a judgment.
Types of divorce and express divorce in Santander
First of all, it should be noted that once a marriage is entered into, a series of obligations arise for the spouses, such as cohabitation, the duty of mutual assistance, fidelity, and many others, known as the marital or matrimonial bond.
That being so, divorce is the definitive breaking of that bond, whereby the parties no longer have any obligation to one another, save for those that may arise from the divorce itself, such as the compensatory pension for the ex-spouse or the maintenance of the children. Each party thus regains their civil status, now as divorced, without having to account to anyone for their activities.
Along these lines, it should be stressed that there is only one divorce; nevertheless, it is usually divided into types according to the applicable procedure. So we have:
Contested divorce
This is the type of divorce to be used when one of the parties does not agree to divorce, or if there is disagreement about how the shared assets are to be divided.
Regarding this procedure, it should be added that these days it is not necessary for either spouse to allege any grounds for divorce, nor for both to want it. It is enough for one of them to express their wish no longer to be married. Old beliefs, such as the idea that you must be separated first, should likewise be discarded.
The reality is that, today, the law takes the view that no one should remain married if they do not wish to, so the breaking of the marital bond is made easier. The disputes are reserved for determining the division of the property regime, the custody of the children (if there are any) and the visitation arrangements. So, if you are the one who wants to divorce but your spouse does not, breaking the bond through this procedure is entirely feasible.
In any case, for this type of divorce it will be necessary to have a series of items of evidence that our team of professionals will request from you according to your specific situation.
Express divorce in Santander or divorce by mutual consent
When both spouses are willing to separate and there is an agreement or clear rules on how that ending will take place, the work becomes simpler. It is enough for both spouses to agree to end the marriage and to sign the divorce agreement, a document in which each party sets out what they will receive, what they undertake to do and how the children (if any) will be cared for after the divorce.
This arrangement is sometimes known as an express divorce because of the speed with which a final divorce can be obtained. It can even be pursued before a notary (if there are no minor children) or before a court but, whichever the case, it is always prudent for a lawyer to draft the corresponding divorce agreement and advise on the different ways to divorce in Santander.
Notarial divorce
Divorce before a notary is a convenient and quick option. It avoids the complications of starting proceedings in court, since there is no need to file a claim or wait for a judgment. It is enough to arrange an appointment at the notary’s office for the last shared home, or the residence of either spouse, and the notarial divorce deed will take effect from the moment it is signed.
This arrangement can be used if the divorce is by mutual agreement, you have been married for more than three months and there are no minor children.
Divorce with children in Santander
Every divorce, whether amicable or contested, in which there are children involved must be handled before a court. In any case, there is nothing to worry about, since our firm has its own trusted court agents to handle the case before the courts.
Likewise, if there is an agreement, it will be checked by the Public Prosecutor, always to protect the rights of the minors, and approved by the Judge if no breaches of public policy are found. The agreement must also specify the type of custody the minor will be subject to, the maintenance and visitation arrangements, and the support payments.
If there is no agreement, the judge will have to decide on the basis of the proven facts that are most beneficial for the minor. This latter type of situation, a contested divorce with children, tends to be the most complex, so it will always be necessary to devise the correct procedural strategy that is most beneficial for you and your children.
What is separation in Santander?
Separation is usually the term given to any de facto situation in which the couple breaks their obligation to cohabit. However, it is a legal arrangement that exists in the legislation and is designed to break certain marital obligations for an unspecified period, which is precisely where it most differs from divorce, which is definitive, whereas separation is temporary.
Legal separation entails a period of distance so that the parties can decide what will happen to their marital situation, although, it must be stressed, it is not definitive. In any case, the aim is to establish a certain date of separation, in order to protect the parties from obligations (since separation suspends the marital community) and to establish a duty of care for the parents, where there are children in common, while they are not living together.
This legal arrangement is sometimes underestimated; however, remember that there are times when a couple may be going through a crisis and simply need time to resolve their problems. In such cases this is the ideal course of action, since it allows the spouses to make a decision while their assets and obligations remain properly protected and defined.
Types of separation
At this point it is important to note that separation can take various forms. One of them, quite common though not strictly legal, is de facto separation. But from a legal standpoint, it can be brought about after a procedure by mutual agreement or a contested one.
De facto separation
It comes about either by agreement of the spouses or by the decision of one of them to leave the home, in other words, cohabitation ceases. The peculiarity is that it takes place without any intervention by a judicial or notarial authority.
This type of separation can cause a great many headaches in the future, especially at a financial level, since it does not dissolve the matrimonial financial regime. In these cases, it is important to notify the separation to a court.
Separation by mutual agreement
This is the simplest, fastest, cheapest and least traumatic judicial procedure for those involved, since both parties want the legal separation. To request the separation, at least three months must have passed since the celebration of the marriage.
Likewise, they must establish the agreements relating to the custody of the children, if any, the use of the family home and other aspects, by means of a settlement agreement.
This procedure has certain advantages, among them that it is shorter. It can be handled by both spouses or by one with the consent of the other. It is also worth stressing that it will be cheaper, especially because they can be represented and assisted by a single court agent and lawyer.
Contested separation
If there is no agreement between the parties, they must turn to the judge, who will hand down a judgment setting the main terms according to their assessment. The judge may order provisional measures on visitation arrangements, custody, maintenance and others, which will be effective until the final judgment is published.
Of course, this procedure can be longer, more complicated and more costly. For it to proceed, the same requirements must be met, that is, the marriage must have been celebrated at least three months earlier.
Separation of property in Santander
Bear in mind that, when a de facto separation occurs, the spouses remain subject to a shared property regime, which can be quite harmful. In this respect, remember that a de facto separation, that is, one not agreed by the court, keeps the community-of-property regime in place between the spouses, so that the economic activities and debts taken on by one entail liability for the other.
By contrast, one of the effects of legal separation is that, from the judge’s decree, a separation of property arises between the parties. Each one then has free disposal of their assets without affecting the rights of the other and can acquire property that will be their exclusive ownership.
Separation and divorce formalities. What documentation might you need?
To process a separation or divorce, a series of basic documents will always be required. This is on the understanding that every case is different, since some procedures will require certain situations to be proved that others do not.
In the case of a claim for separation or divorce by mutual agreement, you must have the marriage certificate from the Civil Registry, the birth certificate of the children, if any, the certificate of residence and a general power of attorney for litigation authorising the court agent who represents each spouse. The settlement agreement must also be submitted.
On the other hand, if it is a claim for contested separation or divorce, in addition to the above, all documents proving the financial situation of the spouses will be required, such as bank statements, payslips, tax returns, property documents, and so on.
Separation and divorce before a notary
Provided certain requirements are met, you can opt for a separation or divorce before a notary. So, if the spouses agree and there are no children in common, or where there are, they are adults or emancipated minors, this route can be chosen. These elements must all be present at once for this form of separation or divorce to be available.
To do so, the spouses must attend in person before the notary for the last shared home, or the home of either of them, duly assisted by a lawyer. They must also submit their settlement agreement, which the notary may reject where they consider it harmful to the spouses, or to the adult or emancipated children.
Cost of separation and divorce
As noted, depending on the procedure it will be longer or shorter, and a cost is associated with that. The costs of a divorce by mutual agreement are usually much lower. Chiefly because both parties can have the same court agent and be advised by the same lawyer.
On the other hand, the costs of a contested divorce go hand in hand with its complexity and duration. The spouses must go to trial with their respective lawyers and court agents. It can become more expensive to the extent that they need to make use of experts and other specialists.
Difference between separation and divorce
There are several differences between the two arrangements; the most important is that separation does not end the marital bond. Divorce extinguishes this legal tie definitively.
This brings other differences, for example, that while there is a legal separation the parties cannot marry again, whereas once the divorce is decreed both regain the right to marry.
From a financial standpoint, divorce allows the community of property to be wound up. Separation does not; it only allows the separation of property.
Separation and divorce: how not to affect your children
Separation and divorce are a difficult event for the family, especially when there are children. Children tend to be vulnerable to these changes, and whether this causes suffering will depend on the parents’ attitude. The way the couple face the situation, peacefully and with mutual respect, favours the emotional stability of the children.
It is essential that daily life changes as little as possible. That is why we will seek negotiated solutions that take into account all the factors and the best way to get through the breakdown of the marriage.
The separation and divorce process
In cases where it is not possible to go to a notary, for example when it is contested or when there are children, we must turn to the court to request the legal separation or the divorce. This entails a judicial procedure.
What is the divorce by mutual agreement procedure like?
It starts with a divorce claim that both spouses will sign. It is handled before the court for the last matrimonial home or that of one of the applicants.
After three days the court summons the applicants to confirm their wish to divorce and their agreement with the settlement agreement. The judge examines the agreement to check that it is not harmful to the children or to either spouse and hands down a judgment within a short period.
If there are minor children, the court requires a report from the Public Prosecutor and, on occasion, hears children over 12 years old.
What is the contested divorce process like?
This is when there is no agreement between the parties. It begins with a claim which, once admitted, will be handled by way of an oral hearing.
Within 20 days the defendant must respond. If they do not, they will be deemed to admit as true what the claimant has alleged. The court then sets the date for the trial, at which each party makes their arguments assisted by their lawyers. Children over 12 years old may also be heard here.
Finally, the judgment decrees the divorce, rules on who the children stay with and the visitation arrangements, and allocates the family home and the maintenance payments.
What is the separation process like?
Judicial separation means that the court authorises (by judgment) the ending of matrimonial cohabitation and the free disposal of the person and assets of the spouses.
This can be obtained by a procedure of mutual agreement, provided that three months have passed since the celebration of the marriage and that the claim is accompanied by a settlement agreement (custody of the children, use of the family home, visitation arrangements, maintenance payments, and so on). In this case there will be no trial, only a date set for the confirmation of the agreement.
If the parties do not agree, a contested claim must be filed and it is then a matter of waiting for the judge to summon the parties to make their arguments. The Public Prosecutor may intervene (if there are minor children) and the judgment will set out the measures that will provisionally govern the relationship between the spouses and with the children.
How much does a lawyer charge for a divorce in Santander
One of the most frequent concerns when taking the step of separating is the financial cost. In Santander, fees can vary significantly depending on the complexity of the process and, above all, on whether there is consensus between the parties.
At BBM Abogados we are committed to transparency from the first consultation. A divorce by mutual agreement usually has a lower, fixed cost, since it allows both spouses to share the same lawyer and court agent, simplifying the judicial formalities. By contrast, a contested divorce involves a greater workload, the drafting of detailed claims and responses, and attendance at hearings in the Family Courts of Santander, which raises the investment. Nevertheless, our added value is efficiency: a well-managed process from the outset avoids future litigation that can prove far more costly.
Divorce by mutual agreement vs contested divorce: differences
It is essential to distinguish between the two routes, since the emotional and financial impact is different. The divorce by mutual agreement (known as express divorce) is the swiftest option. In this case, the spouses draft a settlement agreement in which they set the terms of their separation. It is a fast procedure that is usually resolved in a few months in the Cantabria courts.
On the other hand, a contested divorce arises when it is not possible to find common ground on critical aspects such as maintenance payments or the use of the home. In this scenario, it is a Judge who decides after hearing both parties. At our firm in Santander, our priority is always to exhaust the path of dialogue, to turn a potential conflict into a solid agreement, thereby protecting the emotional stability of the family.
Divorce with minor children: how to protect their wellbeing
When there are minor children, the divorce process takes on a special sensitivity. In current family law, the central focus is always the ‘Favor Filii’, or the best interests of the child. It is necessary to define with precision the arrangements for shared custody (increasingly common in the courts of Santander) or sole custody, as well as parental responsibility and the visitation arrangements.
Our team will advise you so that the impact of the breakdown is as small as possible for your children. This includes calculating the maintenance payments following the official tables, but adapting them to the reality of education and leisure costs in Cantabria. A well-drafted agreement ensures that the child maintains their quality of life and their relationship with both parents without interference from the couple’s dispute.
What is the settlement agreement and how is it drafted?
The settlement agreement is the most important contract you will sign after your breakup. It is the document in which all the agreements are set out: from who gets to use the family home in Santander to how the burdens of the marriage, or the pets, will be shared.
A poor drafting of this document is a source of legal problems years later. At BBM Abogados we draft personalised, detailed agreements that anticipate future scenarios, avoiding ambiguities that force a return to court over an enforcement dispute. We ensure that the document meets all the requirements demanded by the Public Prosecutor so that it is approved by the court without delays.
