Divorce Agreement in Spain

A divorce agreement sets out the principal personal, family and financial arrangements following an agreed divorce in Spain. Its terms may govern the relationship between the former spouses for many years.

In an agreed divorce in Spain, the spouses must determine the arrangements that will apply following the breakdown of the marriage. Where children, a family home, financial obligations or matrimonial property are involved, preparing the agreement requires considerably more than completing a standard form.

At EBAN Abogados, we advise clients on the negotiation and drafting of the divorce agreement, known under Spanish law as the convenio regulador, ensuring that its provisions are clear, legally appropriate and adapted to the actual circumstances of the family.

What is a divorce agreement?

The convenio regulador is the agreement through which spouses establish, by mutual consent, the principal consequences of their separation or divorce in those matters that need to remain regulated following the breakdown of the marriage.

Its purpose is not merely to enable an agreed divorce to proceed. Once approved by the court or formally executed in those cases where Spanish law permits a notarial divorce, its provisions establish rights and obligations with which the parties must comply.

The agreement should therefore be drafted not only with the circumstances existing at the time of divorce in mind, but also considering how the agreed arrangements will operate in practice in the years that follow.

What should a divorce agreement contain?

The precise content depends on the circumstances of each marriage. Not every divorce agreement needs to address the same matters.

Where applicable, the agreement may need to deal with arrangements concerning children, parental responsibilities, periods of residence or time with each parent, communications, child maintenance, use of the family home, family expenses and any financial arrangements between the spouses.

Other property and financial agreements may also be included where legally permissible and appropriate for regulating the economic consequences of the divorce.

The objective should be to establish obligations that are clear, specific and sufficiently predictable. Excessively general provisions frequently do little more than postpone a dispute until a later date.

Children, custody and parenting arrangements

Where minor children are involved, the agreement must establish the arrangements affecting them with their best interests as the primary consideration.

Depending on the circumstances, it may be necessary to determine custody arrangements, the periods that the children will spend with each parent, weekends and holidays, collection and return arrangements, communications and the manner in which significant decisions concerning the children will be made.

The arrangements should reflect the reality of each family. The children’s ages, school schedules, the parents’ respective homes, the organisation of family life before separation and each parent’s practical availability may all be relevant.

The purpose is not to regulate every aspect of family life unnecessarily, but neither should foreseeable sources of disagreement be left unresolved.

Child maintenance and extraordinary expenses

The financial contribution of both parents towards their children’s needs is another essential aspect of the agreement.

Child maintenance should be determined having regard to the needs of the children, the financial circumstances of both parents and the parenting arrangements established.

It is also advisable to regulate how maintenance payments will be updated and to distinguish between ordinary expenses covered by maintenance and extraordinary expenses that may arise separately.

Defining which expenses require prior agreement, how they should be communicated and the proportion in which they will be paid can prevent numerous subsequent disputes.

The family home

The right to use the family home may be one of the most significant financial issues arising from divorce.

It is important to distinguish between ownership and the right to use the property. Granting one spouse the right to remain in the family home does not necessarily alter its ownership and does not, by itself, change existing obligations towards a mortgage lender or other third parties.

It may also be appropriate to determine how particular expenses associated with the property will be paid, taking into account the nature of each obligation and the ownership of the property.

Where minor children are involved, their circumstances and needs will be particularly relevant when determining arrangements concerning the family home.

Spousal maintenance

In certain circumstances, divorce may create a financial imbalance for one spouse in relation to the position enjoyed during the marriage.

Where the requirements established by Spanish law are satisfied, spousal maintenance or another form of financial compensation may be agreed or awarded.

Whether such compensation is appropriate, together with its amount, duration and method of payment, must be assessed according to the particular circumstances of the marriage and the spouses. It is not an automatic consequence of divorce.

Where such an arrangement is established, its terms should be carefully defined, including, where appropriate, the circumstances that may subsequently result in its modification or termination.

Debts and other financial matters

Divorce may require the spouses to reorganise financial obligations that had previously been managed jointly.

Mortgage loans, other credit arrangements, expenses associated with particular assets, joint bank accounts and other liabilities should be considered individually.

Agreements reached between the spouses do not necessarily alter their legal relationship with third parties. An internal agreement that one spouse will assume responsibility for a debt does not, by itself, release the other spouse from liability towards the creditor where both remain legally liable.

This distinction is particularly important in relation to jointly contracted mortgages and other financial obligations.

Divorce agreements and the division of matrimonial property

Divorce has consequences for the matrimonial property regime, but ending the marriage and dividing the matrimonial estate are not necessarily the same legal operation.

Where the marriage is subject to the Spanish community property regime known as sociedad de gananciales, the spouses may choose to use their agreement to deal with the division of the common estate, provided that the financial circumstances allow this to be done appropriately.

In other cases it may be preferable to deal with the division of property separately, particularly where there are disagreements concerning the classification of assets or debts, valuations, claims between separate and common estates or the eventual allocation of particular assets.

More information about the division of matrimonial property in Spain →

Court approval or notarial divorce

The divorce agreement must form part of the appropriate legal procedure in order to produce the effects provided for under Spanish law.

Where there are minor non-emancipated children, or children in respect of whom judicial support measures have been established and attributed to their parents, an agreed divorce is dealt with through the courts and the agreement is subject to the corresponding legal scrutiny.

Where the statutory requirements are satisfied, an agreed separation or divorce may also be formalised before a Spanish notary.

The appropriate procedure therefore depends not simply on the spouses’ preference, but on their family circumstances and the legal requirements applicable to each form of divorce.

Subsequent modification of the agreement

A divorce agreement is prepared on the basis of circumstances existing at a particular time, but family and financial circumstances may subsequently change.

Where there has been a significant change in circumstances, it may become necessary to seek modification of the existing measures through the appropriate procedure.

Loss of employment, substantial changes in income, new needs of the children, changes of residence or other relevant circumstances may justify considering a modification. They do not, however, automatically terminate existing obligations.

More information about modification of divorce measures →

Breach and enforcement of the agreement

Once approved, a divorce agreement is not merely a statement of intention.

Where either party fails to comply with the obligations established, it may become necessary to use the appropriate judicial procedures to enforce them.

Non-compliance may concern maintenance payments, financial obligations, parenting arrangements or other enforceable measures established in the agreement.

For this reason, precision at the drafting stage has considerable practical importance: the clearer the obligation, the less room there is for subsequent disagreement about what each party was required to do.

The importance of negotiating the agreement properly

A divorce agreement will normally be the result of negotiation. The objective should not simply be to obtain both spouses’ signatures, but to reach an arrangement that can operate reasonably after the divorce.

This requires distinguishing genuinely important issues from those where compromise is possible, considering the financial consequences of each proposal and avoiding arrangements that merely postpone the dispute for several months or years.

The involvement of lawyers can assist this process by separating the personal conflict surrounding the breakdown of the marriage from its specific legal and financial consequences.

Where agreement is possible, our role is to work towards a legally secure and sustainable solution. Where it is not, it may be necessary for particular issues to be determined by the court.

Lawyers for Divorce Agreements in Spain

At EBAN Abogados, we advise on the negotiation, preparation and review of divorce agreements, their subsequent approval or formalisation and, where necessary, proceedings concerning their modification or enforcement.

As a multidisciplinary law firm, we can also consider the family, property, real estate, corporate and tax consequences arising from the arrangements reached between the spouses.

Initial consultations are free of charge. Before undertaking any professional engagement, we assess the circumstances of the marriage and identify the matters that need to be properly regulated.

Return to our Divorce and Matrimonial Law page.

A well-drafted divorce agreement should do more than enable the divorce to proceed. It should reduce the risk that its own terms become a source of future disputes.

EBAN Abogados
Divorce · Divorce Agreements · Matrimonial Law · Family Law in Spain