Separation and divorce by mutual agreement without children. Judicial or notarial jurisdiction?

Traditionally, there were two channels for separation and divorce: first, the contentious channel provided for in art. 770 of Law 1/2000, of January 7, on Civil Procedure and, secondly, the process of mutual agreement contemplated in art. 777 of identical ritual standard.

All these procedures were attributed to the civil jurisdiction and, within it, to the specific competence of the First Instance or specialized Family Courts, where they existed, in application of arts. 98 LOPJ and 46 LEC. Specifically in family matters, RD 1322/1981, of July 3, must be taken into account, as a consequence of the amendments to the CC by the Final Provision of Law 11/1981, of May 13, regarding Filiation, Homeland Power, and Economic Regime of Marriage, and Law 30/1981, of July 7, on Nullity, Separation and Divorce. Without forgetting, finally, the possible competence of the Violence Court on women in art. 89 ter, second paragraph, letter b).

Well, this meant that, in Spain, until 2015, a jurisdictional resolution attributed to the exclusive competence of a Judge was necessary to separate or divorce. And this underwent a substantial change with Law 15/2015, of July 2, of the Voluntary Jurisdiction (BOE No. 158, of July 3, 2015), which entered into force on July 23, 2015.

In this norm , along with other laws, a whole series of articles of the Civil Code were modified: arts. 47, 48, 49, heading of Section 2 of Chapter III of Title IV of Book I, 51, 52, 53, 55, 56.57, 58, 60, 62, 63, 65, 73. 3rd , 81 -paragraph 1st-, 82, 83, 84, 87, 89, 90, 95 paragraph 1st, 97 -last paragraph-, 99, 100, 107.2, 156 paragraph 2nd, 158 -last paragraph- , 167, 173 -paragraph 1st-, 176.2 -paragraph 1st-, 177.2, 181, 183 -last paragraph-, 184, 185, 186, 187, 194. 2nd, 3rd and 4th , 196, heading of Chapter III of Title VIII of the First Book, 198, 219, 249, 256, 259, 263, 264, 265, 299 bis, 300, 302, 314, 681, 689, 690, 691, 692, 693 , 703 2nd paragraph, 704, 712, 713 -paragraph 1st-, 714, 718, 756. 1, 2 and 3, 834, 835, 843, 899, 905, 910, 945, 956, 957, 958 , 1005, 1008, 1011, 1014, 1015, 1017, 1019, 1020, 1024, 1030, 1033. 1st paragraph, 1057, 1060, 1176, 1178, 1180, 1377, 1389, 1392 and 1442;of Law 8 June 1957, the Civil Registry: arts. 58. 1, 2, 5, 6, 7, 8, 9, 10 and 12, 59, 60, 61, 67, 74.1, Second Final Provision -ap. 2- Fifth Final Provision, Tenth Final Provision. In addition,  from the LEC itself,  arts. 8. 1, 395.1, 525.1, 608, 748, 749.1, 758 -paragraph 2nd-, 769.1 and 2, 777. 4, 782. 1, 790, 791.2,792.1, 802.1 and the Twenty-Second Final Provision. Add: art. 777.10, Chapter IV bis of Title I of Book IV, art. 778 quater to 778 sexies, and art. 791.3.

In essence, it was about dejudicializing functions formerly reserved to the Honorable Member, records of voluntary jurisdiction and other judicial actions, and of attributing it to Notaries, Registrars and Lawyers of the Administration of Justice. Among them were the mutually agreed separation and divorce processes.

In this matter, we will distinguish several key precepts:

  • Regarding separation, arts. 81 and 82 CC. The first of them points out: “(…)  the separation will be decreed judicially when there are minor children who are not emancipated or with the capacity modified by the courts depending on their parents, whatever the form of celebration of the marriage ”.

Add art. 82: “ (…) 1. The spouses may agree to their separation by mutual agreement three months after the celebration of the marriage by formulating a regulatory agreement before the Court Clerk or in a public deed before a Notary (…) giving their consent to the Court Clerk or Notary 2. The provisions of this article will not be applicable when there are minor children who are not emancipated or who have the capacity to be judicially modified and who depend on their parents ”.

A quick reading seems clear, in the separation by mutual agreement only a Judge intervenes when there are minor children or those with judicially modified capacity. Otherwise, that is, if there are no children or if the children are older or emancipated, it seems that the competence of the Honorable Member is excluded, having to go to the Notary or the Judicial Secretary, current Lawyers of the Administration of Justice.

  •  Regarding divorce, art. 86: “ Divorce will be decreed judicially, whatever the form of celebration of the marriage, at the request of one of the spouses, of both or of one with the consent of the other, when the requirements and circumstances demanded in article 81 are met. ”  Add art. 87: “ (…) The spouses may also agree to their divorce by mutual agreement by formulating a regulatory agreement before the Court Clerk or in a public deed before a Notary, in the manner and with the content regulated in article 82 ”.

If we go to the procedural rule we find the regulation in art. 777. Thus, section 10 states: “(…)  If the jurisdiction belonged to the Court Clerk because there are no non-emancipated minor children or those with the capacity modified by the court depending on their parents, immediately after the ratification of the spouses before the Court Clerk ”

But the precept seems to leave a series of questions at stake:

1. Can a divorce occur by mutual agreement before the notary or the LAJ if the woman is pregnant?

The answer must be negative, since the person conceived is considered to be born for what is favorable to him, as determined by the CC, and the intervention of the compulsory Public Prosecutor’s Office in all judicial separation or divorce proceedings is in the interest of the minor. Therefore, in this case, there is no room for a divorce before a Notary or Lawyer of the Judicial Administration, and must be before the Judge.

2. Can a divorce take place by mutual agreement before the LAJ, if there are no children or must it be before the notary?

It seems that the Spanish legislator has not conceived or relied excessively on the fertility and procreative capacity of all Spanish marriages without taking into account the thousands of childless marriages to which he does not mention or at least does not explicitly mention.

The answer must be affirmative, and marriages without procreation must be understood as included in the expression ” without emancipated minor children (…) “, which use all the aforementioned precepts.

Especially, when we go to the Explanation of Reasons of Law 15/2015 to see the reasons for the change: “ (…) The modification of the Civil Code aims to adapt many of its provisions to the new provisions contained in this Law , at the same time as modifications are introduced that affect the determination of the concurrence of the requirements to contract marriage and its celebration, as well as the regulation of the separation or divorce by mutual agreement of the spouses without minor children outside the judicial sphere , attributing to the judicial Clerk and the Notary the functions that until now corresponded to the Judgeand that they also entail a reform of Law 20/2011, of July 21, of the Civil Registry, of the Law of Civil Procedure and of the Law of Notaries . ”

Only one consequence can be drawn from said explanatory statement: When the legislator wants to leave the consensual separations and divorces out of the so-called “judicial sphere” , the only thing he intends is to remove functions from the Honorable Members, but not completely exclude the possible action of the judicial body , and this must suppose the possibility of acting of the Lawyers of the Administration of Justice, as much when there are minor children not emancipated or with judicially modified capacity as when there are none.

On the other hand, it should not be forgotten that, although they can go to the Notary or to the LAJ, even if there are no children, both may oppose the approval of the Agreement and the signing of it when they consider it particularly harmful or seriously detrimental to one of the spouses. and, in this case, the competition would be exclusive of the Judge.

I also want to point out the multiple problems that the new art can pose. 82.1, second paragraph, of the Civil Code, in the development of the mutual agreement procedure, either before the LAJ or before the Notary, when it requires that the divorce be consented to by emancipated older or younger children who live in the family home because they lack of own income. Are we talking about the children of one, the other, or common marriage? What is understood by consent? Can a common child or a previous marriage block the free and voluntary decision of the couple or is it referring only to the economic effects? But this would be worthy of another post.

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