Consensual vs. Contested Divorce in Spain: Differences, Costs and Timeline

# Mutual Consent Divorce vs. Contested Divorce in Spain

The dissolution of a marriage in Spain may follow two distinct procedural paths, governed by the Código Civil (Spanish Civil Code, Arts. 81–107) and the Ley de Enjuiciamiento Civil (Spanish Civil Procedure Act, Arts. 769–778 LEC). The choice between the two depends primarily on whether the spouses have reached an agreement on the measures that will govern their separation.

Common Requirements: The 3-Month Waiting Period

Since the 2005 reform, no grounds are required for divorce. The only time-based requirement is that at least 3 months must have elapsed since the marriage was solemnized (Art. 86 CC), unless there is a risk to the life, physical or moral integrity, liberty, or sexual safety of either spouse or the children, in which case divorce may be sought without waiting for that period.

Mutual Consent Divorce

Procedure

1. Both spouses file a joint petition, or one files the petition with the other's consent.
2. The petition is accompanied by the Convenio Regulador (Regulatory Agreement, Arts. 90 CC and 777 LEC), which must address:

- Visitation, stays, and communication arrangements.

- Child support and contribution to extraordinary expenses.

- Use of the family home.

- Liquidation of the matrimonial property regime.

- Compensatory allowance (pensión compensatoria), if applicable.

1. The court schedules a ratification hearing for both spouses (typically lasting 10–15 minutes).
2. If there are minor children, the Ministerio Fiscal (Public Prosecutor's Office) issues a report; the judge may reject any clauses contrary to the child's best interests.

Timelines and Costs

• Timeline: 2 to 6 months in courts without backlogs; up to 12 months in heavily congested areas.
• Cost: A single lawyer may represent both parties if there is no conflict of interest, or each spouse may retain their own. A procurador (court representative) is optional in mutual consent proceedings.
• Notary (since 2015, under Ley 15/2015): Where there are no minor children or children with modified legal capacity, the divorce may be processed before a Notary, with the same regulatory agreement, and far more quickly (weeks rather than months).

Contested Divorce

Procedure

1. One spouse files a divorce petition asking the court to establish definitive arrangements regarding children, the family home, and financial support.
2. The other spouse files a response and may submit a counterclaim seeking different arrangements.
3. The proceedings follow the juicio verbal (expedited oral trial) rules (Arts. 770–771 LEC):

- Oral hearing with presentation of evidence.

- Judgment.

1. Provisional measures may be ordered prior to the final judgment (Arts. 771–773 LEC) to regulate the interim arrangements for children, the family home, and financial support while the proceedings are ongoing.

Timelines and Costs

• Timeline: From 12 months to 3–4 years in areas with severe judicial backlogs.
• Cost: Each spouse must retain their own lawyer and procurador (the latter being mandatory in contested proceedings, Art. 23 LEC).
• Overall costs are substantially higher than in mutual consent proceedings.

Arrangements Concerning Children

Custody

The Tribunal Supremo (Spanish Supreme Court) has established joint custody as the preferred arrangement when both parents are fit and the child has an emotional bond with each of them (STS of 29 April 2013 and subsequent case law). Nevertheless, sole custody remains the most common outcome in practice.

Supreme Court criteria for joint custody:

• Age and circumstances of the children.
• Fitness of each parent.
• Availability in terms of work schedules and flexibility.
• The child's relationship with each parent.
• The child's views, if sufficiently mature (Art. 92.6 CC).
• Distance between the parents' homes.
• Absence of domestic or gender-based violence.

Child Support

Child support is determined by the child's needs and the paying parent's financial capacity (Art. 146 CC). It covers food, clothing, housing, education, and medical expenses. Extraordinary expenses (orthodontics, extracurricular activities, etc.) are typically shared equally unless otherwise agreed.

Compensatory Allowance

A spouse who suffers an economic imbalance as a result of the separation, compared to the other spouse's financial position, may claim a compensatory allowance (pensión compensatoria, Art. 97 CC). This is not a form of damages but rather an equalising measure. The Supreme Court recognises both lifelong and time-limited allowances. Relevant factors in determining the amount include: length of the marriage, age, state of health, contribution to family life, and employment and financial prospects.

Liquidation of the Matrimonial Property Regime

The divorce judgment dissolves the property regime but does not automatically liquidate the sociedad de gananciales (community property) or the consorcio aragonés (Aragonese community property). Liquidation may be carried out by mutual agreement (before a notary or within the regulatory agreement) or through separate court proceedings (Arts. 806–811 LEC). The family home is a particularly sensitive asset: even if it forms part of the community property, the judge may grant temporary use of it to the custodial parent in the interests of the children.

Comparison Table

Conclusion

Mutual consent divorce is faster, less costly, and less emotionally damaging. Where there is a dispute over arrangements concerning children, financial support, or assets, contested divorce is unavoidable. In either case, the involvement of a lawyer specialising in Family Law is essential to protect the rights of the children and both spouses.