Divorce by mutual consent in Catalonia: before a notary or in court

A divorce is by mutual consent when both spouses agree to divorce and on the arrangements for the children, the home, maintenance and assets. That agreement is set out in a settlement agreement (convenio regulador). In Catalonia, its content is governed by Book Two of the Civil Code of Catalonia, and how you divorce (before a notary or in court) depends mainly on whether there are minor children.

In brief

• It can be requested once three months have passed since the wedding.
• Without minor unemancipated children or children with support measures: before a notary or a court clerk (letrado de la Administración de Justicia).
• With minor children: in court, which approves the agreement.
• Always with a lawyer and with both spouses signing in person.
• If there are children, the agreement includes a parenting plan and child maintenance.

Before a notary: when it is possible

Spouses can divorce by mutual consent by public deed before a notary, or before the court clerk, when three months have passed since the wedding and they have no minor unemancipated children or adult children with support measures assigned by a court to the parents (Articles 87 and 82 of the Civil Code). The Civil Code of Catalonia says the same in its Article 233-2.3.

• Both spouses must take part in person and be assisted by a practising lawyer.
• Adult or emancipated children who have no income of their own and live in the family home must consent to the measures that affect them.
• Diplomatic and consular officials cannot authorise a divorce deed.

In court: with minor children

If there are minor unemancipated children, or children whose capacity has been modified by a court and who depend on their parents, the agreement is submitted to the court for approval (Article 233-2.2 of the Civil Code of Catalonia and Articles 81 and 86 of the Civil Code). The judge approves the terms except those that are not in the interest of the minor children and, if any are refused, states what must be changed and by when (Article 233-3).

What the settlement agreement must contain

If there are children of both spouses under parental authority, under Article 233-2.4:

• A parenting plan.
• Child maintenance, both ordinary and extraordinary, with how often and how it is paid, how it is updated and, where appropriate, guarantees.
• Where appropriate, contact with grandparents and with siblings who do not live in the same home.

Also, where appropriate: compensatory payment, use of the family home, financial compensation for work if they were married under separation of property, and the settlement of the matrimonial property regime and joint assets.

The parenting plan

It sets out how both parents will exercise their responsibilities. Under Article 233-9, it covers:

• Where the children will live and who they will be with at any given time.
• Each parent’s tasks in the children’s daily life.
• How handovers will take place and how their costs are shared.
• Communication with the parent they are not with at any given time.
• Holidays and special dates.
• Education and extracurricular activities.
• How information about their education, health and well-being will be shared.
• How changes of address and other important matters will be decided.

Parental responsibilities remain shared after the divorce and, as far as possible, are exercised jointly (Article 233-8).

Compensatory payment

It may be claimed by the spouse whose financial situation is most harmed by the break-up. It cannot exceed the standard of living during the marriage or what the paying spouse can maintain, and child maintenance takes priority. If it is not claimed in the first proceedings or agreed in the first settlement agreement, the right to claim it is lost (Article 233-14).

How we help you

We draft the settlement agreement and the parenting plan, negotiate the difficult points, sign with you before a notary or file the joint divorce petition in court. We see you in Barcelona or by video call. You can book your first consultation or see our service for separation and divorce.

Legislation

• Civil Code, Articles 81, 82, 86, 87 and 90.
• Law 25/2010, of 29 July, Book Two of the Civil Code of Catalonia, on persons and the family (Articles 233-2 to 233-14).