Sometimes, really few, people usually come to my office asking for separation, when in reality what they want is to get a divorce; or requesting a divorce, when what they want is the marriage annulment; or filing for divorce, when they just want to separate. Other times they use these terms interchangeably, thinking that they mean the same thing.
It is when I must explain the differences between separation, divorce and marriage annulment. For Family Lawyers these differences are obvious, but some people are not so clear about it, which should not surprise us, since these issues do not belong to the ordinary life of people, nor do all marriages have to face these legal realities .
Before 2005, in Spain it was necessary to previously separate to be able to divorce. With the entry into force of Law 15/2005, of July 8, which amended the Civil Code and the Civil Procedure Law regarding separation and divorce, you can directly sue for divorce if three months have passed since the celebration of marriage. It will not be necessary for the three months to have elapsed when it is proven that there is a risk to the life, physical integrity, liberty, moral integrity or sexual freedom and indemnity of the spouse filing for divorce, of the children of both or of any of the members of the marriage.
The main difference between separation and divorce is that the separation does not dissolve the marriage bond, but the marriage remains, it is still in force; therefore, a new marriage cannot be re-contracted with a third person, as long as the marriage bond is not dissolved. The sentence of marriage separation suspends the common life of the married.
The separation may be de facto or de jure. It is legal, when judicially requested; it is in fact if it is produced by mutual agreement or unilaterally, without judicial intervention, one of the spouses abandoning the family home (it is the commonly called separation of bodies).
In the event of separation, it is advisable to separate judicially so that important aspects such as those relating to children ( custody and custody , alimony , etc.) or those relating to property relations ( matrimonial economic regime , liquidation of the economic regime) can be defined. marriage , etc.). In any case, if they decide to separate in fact, it is convenient to formalize by means of a notarial act the paternal-filial and patrimonial relations.
The divorce decree , on the other hand, does dissolve or break the marriage bond, so that, once divorced, the spouses can re-contract a new civil marriage. But if the marriage was celebrated by the Catholic Church, the divorce does not allow to contract a new canonical marriage until the competent Ecclesiastical Courts judicially declare the nullity of the Catholic marriage , after a demanding judicial process, in which it is carefully examined whether some of the causes of canonical marriage annulment .
The Civil Courts can also declare the nullity of a civil marriage, if there are grounds for civil marriage nullity, indicated in article 73 of the Spanish Civil Code. The sentence of nullity, both ecclesiastical for Catholic marriage, and civil for civil marriage, what it does is declare the non-existence of marriage, that is, that there was no marriage, that it was not born into legal life, although it did generate effects legal (for example, regarding the marital affiliation of the children , the matrimonial property regime , etc.).
Nullity, unlike divorce, declares the non-existence of marriage because it was invalidly contracted. The divorce, on the other hand, dissolves the marriage, breaks it regardless of whether it has been valid or has been null.
We have, then, that the marriage separation neither dissolves nor annuls the marriage, it continues to exist and the spouses continue to be spouses, that is, they remain married and, therefore, cannot remarry another person. Divorce does dissolve the marriage, it ceases to exist, even if the marriage has been validly contracted and ex-spouses can civilly remarry another person. The nullity declares that this marriage was not valid, that it does not exist, but all the legal effects of the marriage relative to the children born in the marriage and to the matrimonial property regime were displayed; once the marriage annulment has been judicially declared, the spouses are left without a marriage bond and can re-contract new nuptials.
With separation, some marital duties cease, such as the duty to live together, and some legal presumptions, such as the presumption of paternity with respect to children conceived by the wife in the period in which the separation is already effective, cease. If the spouses reconcile, they can return to live together in marriage, informing the Judge if the separation is not in fact but judicial. But if they are divorced and the exes reconcile, they must contract a new civil marriage, because it was dissolved.
Both civil law and canon law authorize the separation of spouses. Likewise, also canon law (for canonical marriage) and civil law (for civil marriage) admit and recognize that there may be grounds for annulment that allow a marriage to be declared null. While in the Catholic Church marriage is indissoluble and for this reason it does not admit divorce (except for the privilege of faith and marriage not yet consummated ).
The causes of marriage annulment must exist before the marriage is contracted or must occur at the same time. They must not be subsequent to the celebration of the validly contracted marriage. This is why in case of matrimonial nullity, it is not that the ecclesiastical jurisdiction or the civil jurisdiction, “annul the marriage” or “nullify it”, but what they do is “declare the pre-existing nullity” of it, a once they have verified it (because the presumption of validity admits that “everything is marriage is valid, as long as the contrary is not proven”).
The grounds for annulment of both civil marriage and Catholic marriage are exhaustively indicated by the respective laws and both admit the dispensation of the same