De Facto Separation

What is de facto separation?

De facto separation is the situation in which two spouses stop living together and bring their life in common to an end without any court proceedings, notarial deed or decision formally recognising that break-up.

It is therefore a real breakdown of marital cohabitation, but it is not the same as a legal separation or a divorce. Legal separation produces certain formally recognised legal effects, while divorce definitively dissolves the marriage bond.

 

Difference between de facto separation, legal separation and divorce

De facto separation occurs when spouses stop living together but do not formalise that situation before a judge, a court official or a notary.

By contrast, legal separation requires a formal procedure and makes it possible to regulate the legal consequences of the break-up, such as measures relating to children, use of the family home, pensions or the matrimonial property regime.

Divorce, on the other hand, definitively dissolves the marriage bond. After divorce, the spouses are no longer married and may marry again.

 

What legal effects can it have?

De facto separation does not automatically produce all the effects of a legal separation or a divorce. However, it may have relevant consequences, especially if it continues over time or if there are children, common assets or inheritance rights involved.

Among its most important effects may be the possibility of requesting certain court measures, its impact on the matrimonial property regime and the need to prove when cohabitation actually ended.

 

Where there are minor children

Where there are minor children, the break-up does not by itself regulate child custody, visitation arrangements, child support or the use of the family home.

If the parents reach agreements, it is advisable to formalise them through the appropriate legal route so that they are effective and can be enforced in the event of non-compliance. If there is no agreement, either parent may request court measures to protect the children’s stability.

To understand what is usually included in these agreements, you can read our latest article on the divorce settlement agreement.

 

Matrimonial property regime

The lack of cohabitation may have effects on the matrimonial property regime, especially where there is a community of property regime.

In certain cases, a prolonged break-up may justify requesting the judicial dissolution of the community of property regime. It may also be relevant when determining whether certain assets or debts should be considered common or separate, provided that the actual end of life in common can be properly proven.

For this reason, when spouses stop living together but do not formalise the situation, it is advisable to keep documents that can prove when the separation began and how income, expenses and assets have been managed since then.

 

Inheritance

De facto separation may also have consequences in inheritance matters. Under the Spanish Civil Code, a surviving spouse who was separated de facto may be excluded from certain statutory inheritance rights, such as the surviving spouse’s forced heirship rights or entitlement in intestate succession.

However, this area requires particular caution, because there may be previous wills, specific provisions, regional civil law rules or circumstances that require individual analysis. Therefore, when the break-up continues over time, it is advisable to review the inheritance position and, where appropriate, update the will.

 

Risks of not formalising the break-up

Keeping an indefinite situation for a long time can create uncertainty and later disputes.

The main risks include:

• Children being left without clear rules on custody, visitation and child support.
• Common assets not being divided and debts or liabilities accumulating.
• Difficulty proving when cohabitation actually ended.
• Disputes arising over assets acquired or debts incurred after the break-up.
• Uncertainty over inheritance rights or outdated testamentary provisions.

 

What should be done?

When the breakdown of cohabitation is definitive, it is advisable to assess as soon as possible whether the situation should be formalised through legal separation or divorce proceedings.

If there is agreement between the spouses, it may be processed by mutual consent and the necessary measures can be regulated in an orderly way. If there is no agreement, the corresponding contentious procedure will be necessary.

Formalising the break-up makes it possible to regularise the children’s situation, organise the financial consequences, divide the common assets where appropriate and avoid future disputes.