Agreed and Contested Divorce in Spain

Divorce in Spain may proceed by agreement between the spouses or through contested court proceedings. The principal difference is not whether a divorce can be obtained, but how its consequences are determined.

At EBAN Abogados, we advise and represent clients in both agreed and contested divorce proceedings in Spain, assessing from the outset which matters can realistically be negotiated and which may require determination by a court.

Reaching an agreement will often provide a faster and more flexible solution, adapted to the circumstances of the family. However, agreement should not become an objective at any cost. Where the parties’ positions are incompatible or prolonged negotiations may prejudice the client’s interests, contested proceedings may be necessary.

Agreed and contested divorce: the differences

Under Spanish law, both spouses do not need to agree for a divorce to take place. The fundamental distinction between the two procedures concerns how the consequences of the divorce are determined.

In an agreed divorce, the spouses reach an agreement concerning the measures that will regulate their situation following the breakdown of the marriage and submit that agreement for the corresponding approval or formalisation.

In a contested divorce, the spouses disagree about one or more of those matters and the court must determine them after considering the parties’ positions and the evidence presented.

The route followed at the beginning of a dispute does not necessarily determine how it will ultimately end. Negotiations may lead to an agreed divorce, while proceedings that begin as contested may subsequently be resolved by agreement.

Agreed divorce in Spain

An agreed divorce, or divorce by mutual consent, allows the spouses themselves to determine, within the limits established by Spanish law, the principal consequences of their separation.

This may be particularly appropriate where the parties are able to negotiate arrangements concerning their children, the family home, maintenance, financial relations between the spouses and, where applicable, matrimonial property.

An agreed divorce will generally reduce the level of confrontation and gives the spouses greater scope to establish arrangements adapted to the actual circumstances of their family, rather than leaving disputed matters to be determined by a court.

However, an agreed divorce does not mean that everything must have been agreed from the outset. Spouses frequently begin negotiations with substantial differences. The agreement may be the result of the legal negotiations conducted before or even after proceedings have commenced.

When an agreement has not yet been reached

The absence of an immediate agreement does not necessarily mean that a contested divorce must be commenced without first exploring other possibilities.

Where there is a reasonable prospect of agreement, negotiations can identify those matters on which the spouses already agree and isolate the issues that remain genuinely disputed.

Sometimes the initial differences are narrower than they first appear. In other cases, positions concerning children, the family home, maintenance, property or other matters may be difficult to reconcile.

Legal advice is also important in determining whether there is a realistic basis for further negotiation or whether continuing to negotiate is merely delaying a decision that will ultimately have to be made by the court.

Negotiation between the parties and their lawyers

Divorce negotiations should help transform a personal conflict into specific legal and financial issues that can be analysed and, where possible, resolved.

Lawyers can assist this process by explaining the consequences of different proposals, suggesting alternatives and helping to prevent important decisions from being made solely as a result of the emotional conflict surrounding the breakdown of the marriage.

Effective negotiation does not mean allowing discussions to continue indefinitely. A balance must be found between exploring reasonable possibilities for settlement and preventing negotiations with no realistic prospect of success from paralysing the situation.

Where sufficient agreement is reached, its terms can be incorporated into the corresponding divorce agreement and the matter can proceed as an agreed divorce.

The divorce agreement

The divorce agreement, known in Spanish law as the convenio regulador, records the measures agreed between the spouses and is a central element of an agreed divorce.

Depending on the family’s circumstances, it may regulate matters concerning children, custody and parenting time, communications, child maintenance, use of the family home, family expenses, spousal maintenance and other financial consequences of divorce.

Its provisions should be sufficiently clear for both parties to understand the obligations they are assuming and to reduce the risk of subsequent disputes concerning their interpretation.

More information about divorce agreements in Spain →

Contested divorce in Spain

Where the spouses cannot reach an agreement, either of them may commence contested divorce proceedings.

Each party presents the measures they consider appropriate and relies on the facts, documents and other evidence supporting their position.

The court will ultimately determine the disputed measures in accordance with Spanish law and the circumstances established during the proceedings.

Preparing a contested divorce therefore requires a different approach from negotiating an agreement. It is necessary to establish from the outset what is being requested, the legal and factual basis for that request and how the relevant circumstances can be proved.

What if your spouse does not want a divorce?

As a general rule, you do not need your spouse’s consent to obtain a divorce in Spain.

The opposition of one spouse may prevent the divorce from proceeding by mutual consent, but it cannot require the other spouse to remain married indefinitely.

Where no agreement exists, divorce may be sought through the courts and the judge will determine those consequences of the separation on which the spouses disagree.

It is therefore important to distinguish between opposing the divorce itself and disagreeing about its consequences. In practice, disputes normally concern the family or financial measures that will apply after the marriage ends.

Children, the family home and financial measures

In contested divorce proceedings, disagreement may concern one or several of the measures required to regulate the family’s situation.

Where minor children are involved, disputes may concern custody, the time the children spend with each parent, communications, child maintenance or other significant decisions affecting them.

There may also be disagreements concerning the use of the family home, spousal maintenance, contributions towards particular family expenses and other financial consequences of the separation.

These matters are not all governed by the same legal criteria. Each must therefore be considered individually while also taking into account the overall framework of measures resulting from the divorce.

Interim measures during divorce proceedings

Contested divorce proceedings may take time to resolve, while certain family matters cannot always remain unregulated until a final judgment is issued.

Where the circumstances require it, it may be appropriate to seek interim measures intended to regulate essential matters temporarily while the divorce proceedings continue.

These measures may concern, among other matters, arrangements for children, use of the family home, maintenance and other obligations requiring an immediate solution.

Whether interim measures should be requested must be assessed in each case. They are not necessary in every contested divorce, but in some situations they can be essential to prevent the absence of temporary arrangements from prolonging or aggravating the conflict.

Can a contested divorce end by agreement?

Yes. Commencing contested proceedings does not prevent the spouses from subsequently reaching an agreement.

In many cases the parties’ positions evolve after proceedings have begun. The documentation available, proposals exchanged between the parties and a clearer assessment of the possible judicial outcome may facilitate a settlement.

Where sufficient agreement is reached, the proceedings can be adapted to reflect the new situation in accordance with the procedural options available under Spanish law.

Commencing contested proceedings therefore does not necessarily mean abandoning negotiation. In some cases, formal proceedings can help define the issues in dispute more clearly and ultimately facilitate an agreed solution.

Time, costs and practical consequences

An agreed divorce will generally involve a simpler procedure than a contested divorce, although it is not advisable to give a universal estimate of duration. Timing depends on the applicable procedure, the competent authority or court and the circumstances of the individual case.

Contested proceedings may require substantially greater procedural and evidential work, particularly where there are disputes concerning children, property or the spouses’ financial circumstances.

This can affect both the duration and the cost of the proceedings.

However, cost and speed should not be considered in isolation. An unsuitable agreement accepted merely to conclude the divorce quickly may have significantly greater family or financial consequences in the long term.

Choosing the appropriate divorce strategy

Neither form of divorce is necessarily better in every case.

Where there is a realistic possibility of reaching a balanced agreement, our approach is to facilitate that agreement and ensure that it is legally secure. Where the parties’ positions are incompatible, the level of conflict makes agreement unrealistic or continuing negotiations may prejudice the client, we prepare the matter for court proceedings.

The appropriate strategy should be determined after considering the family and financial circumstances, the parties’ respective positions and the evidence available to support any matters that may ultimately need to be determined by the court.

At EBAN Abogados, we regard negotiation and litigation as different instruments within the same legal strategy: reaching an agreement where a reasonable solution is possible and representing the client before the courts where judicial intervention is necessary.

Agreed and Contested Divorce Lawyers in Spain

We advise and represent clients from the initial negotiations through the preparation of a divorce agreement or, where agreement cannot be reached, throughout contested divorce proceedings before the Spanish courts.

As a multidisciplinary law firm, we can also address property, real estate, corporate, tax and international matters arising in connection with marital breakdown.

Initial consultations are free of charge. Before undertaking any professional engagement, we assess the circumstances, the realistic prospects of agreement and the available procedural alternatives.

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An agreed divorce is preferable where it provides a reasonable solution. Where agreement is not possible, allowing negotiations to continue indefinitely does not resolve the dispute.

EBAN Abogados
Agreed Divorce · Contested Divorce · Matrimonial Law · Family Law in Spain