Notarial divorce, an alternative to judicial proceedings

WRITTEN BY Maribel González i Castelo
12 Sep, 2022 — 3 min
Notarial divorce, an alternative to judicial proceedings

In 2015, with the reform introduced by Law 15/2015 on Voluntary Jurisdiction, the possibility of carrying out divorces before a Notary was approved.

This has allowed other legal operators to authorize divorces, benefiting both the courts, always overloaded with work, and individuals, as it avoids the need to resort to a slow and economically inefficient justice system.

However, not everyone can opt for the notarial route, as there are a series of requirements that must be met for a notarial divorce to take place. Therefore, only spouses who have been married for more than three months can dissolve their marriage before a Notary; the divorce must be by mutual agreement, and it is absolutely necessary to formulate a regulatory agreement that will contain the measures regulating the effects derived from the divorce, such as the attribution of the use of the family home and household goods, contribution to the marital burdens, or possible compensatory or child support in favor of one of the spouses. The spouses must be assisted by a lawyer, and there must be no minor children not emancipated or with judicially modified capacity who depend on the marriage. If there are adult or emancipated children of the marriage, who require any economic measure, they must appear before the Notary to give their consent.

The deed must be granted before the Notary of the last domicile of the marriage, or the place of habitual residence of either spouse. Once signed, the spouses are, from that moment, divorced or legally separated, although for third-party effects, it is necessary to wait for the inscription of the deed in the Civil Registry.

When the regulatory agreement includes the dissolution of the marital economic regime, the deed will only be exempt from the payment of Transfer Tax and Stamp Duty (ITP and AJD) when the distribution of assets is equal. The settlement must be presented within 30 working days following its granting and must also be registered in the corresponding Property Registry.

Therefore, notarial divorce allows the dissolution of the marital bond without the need to go through a judicial process. In practice, it is a simpler and faster formula than the divorce trial, although it is necessary to know in which cases it is not applicable.