What is a mutual agreement divorce?
A mutual agreement divorce, also known as a consensual divorce, is the route through which both spouses jointly decide to dissolve the marital bond and reach an agreement on all matters arising from the separation: the children, the family home, support payments and the division of common assets, if any.
Unlike a contested divorce, where the parties cannot agree and the judge decides, in a mutual agreement divorce it is the spouses themselves who agree on the terms, which are set out in the divorce settlement agreement.
Contents
Requirements
To divorce by mutual agreement in Spain, it is enough for three months to have passed since the marriage took place. It is not necessary to allege any cause or prove fault by either spouse.
Both parties must agree not only to divorce, but also on the terms of the divorce settlement agreement. If there is disagreement on any relevant issue, the appropriate procedure is a contested divorce.
Before a judge or before a notary?
In Spain, there are two ways to process a mutual agreement divorce:
- Judicial route: a joint divorce petition is filed before the court. This route is mandatory when there are minor children or children with court-established support measures who require special protection.
- Notarial route: when there are no minor or dependent children, the divorce may be formalised by public deed before a notary, without having to go to court. This route is faster and simpler.
| Route | When it applies | Authority involved |
|---|---|---|
| Judicial | When there are minor children or children with support measures who require special protection. | Competent court. |
| Notarial | When there are no minor or dependent children and there is full agreement. | Notary. |
Advantages
- It is usually faster and less costly than a contested divorce.
- It involves less conflict and emotional strain for the family.
- The terms are agreed by the parties themselves, which helps encourage future compliance.
- It may be processed before a notary when there are no minor children.
The divorce settlement agreement
The central element of a mutual agreement divorce is the divorce settlement agreement: the document in which the spouses record their agreements on child custody, visitation arrangements, child support, use of the family home and, where applicable, spousal maintenance and the liquidation of the community property regime.
Drafting the divorce settlement agreement properly is essential: a poorly drafted agreement can lead to interpretation problems and future disputes.
For a more practical explanation, you can read our article on what a divorce settlement agreement should include and what mistakes should be avoided.