Separation and divorce: legal framework and main legal implications

Legal framework of separation and divorce

The legal regime of separation and divorce is mainly regulated by the Spanish Civil Code, especially Articles 81 to 107, as well as the corresponding procedural regulations.

In the case of Catalonia, these matters are governed by Book Two of the Civil Code of Catalonia, concerning persons and family, which establishes the applicable framework for family relationships, parental responsibilities, and the effects of marital dissolution.

Since the reform introduced by Law 15/2005, the Spanish legal system allows filing for separation or divorce without the need to allege a specific cause. Generally, it is only required that three months have passed since the marriage, except in certain emergency or risk situations.

Legal difference between separation and divorce

Although often used interchangeably, separation and divorce have different legal effects.

Marital separation implies the suspension of cohabitation and the regulation of family and economic relationships between spouses, but it does not dissolve the marital bond. Therefore, spouses remain legally married and cannot remarry.

In contrast, divorce involves the definitive dissolution of the marriage, extinguishing the legal bond between spouses and allowing the possibility of remarriage.

Separation and divorce procedures

Separation or divorce proceedings can be processed through two main channels: mutual agreement procedures or contentious procedures.

Mutual agreement procedure

When both parties reach an agreement on the measures that will regulate the new family situation, they can submit a joint petition accompanied by a regulatory agreement (convenio regulador).

This agreement establishes arrangements regarding:

• Custody of the children

• Visitation and communication schedules

• Child support

• Use of the family home

• Contribution to family expenses

• Other patrimonial aspects arising from the separation

This agreement must be approved by a judge or formalized before a notary in certain cases.

Contentious procedure

When no agreement exists between the spouses, the procedure is processed through the contentious route. In these cases, the judge determines the applicable measures after analyzing the personal, family, and financial circumstances of the parties.

This type of procedure usually involves greater procedural complexity and a longer duration.

Personal and financial measures arising from the separation

Separation or divorce requires establishing a set of measures that regulate future relationships between the parties and, where applicable, concerning minor children.

Key measures include:

Measures concerning children

• Custody

• Visitation and communication schedules

• Exercise of parental responsibility

• Child support

Economic measures between spouses

• Possible compensatory allowance when the separation creates a significant economic imbalance

• Contribution to family expenses

Property measures

• Allocation of the use of the family home

• Settlement of the matrimonial property regime (community property, separation of property, or other applicable regimes)

Proper regulation of these measures is essential to ensure legal stability in the new family situation.

Legal advice in family law proceedings

Separation and divorce proceedings require a detailed analysis of the personal, family, and financial circumstances of each case. Specialized legal advice allows evaluating different options and proposing solutions tailored to each situation.

The legal department of Vilar Riba provides guidance in family law, supporting clients in separation and divorce proceedings and offering rigorous legal orientation in defining personal and financial measures arising from the marital breakdown.

Conclusions

Separation and divorce constitute legal procedures with significant legal and financial consequences. Correctly regulating the measures arising from the separation is crucial to protect the interests of all parties involved.

Having specialized legal advice enables handling these processes on a solid legal basis, with an approach focused on achieving balanced resolutions of family conflicts.