This has modified Article 82 of the Civil Code, which now states that "1. The spouses may agree their separation by mutual agreement three months after the marriage by formulating a separation agreement before the Clerk of the Court or through public deed before a Notary whereby, along with their unequivocal will to separate, they will determine the measures which shall regulate the effects of the separation on the terms set out in Article 90. Diplomatic or consular officials, acting as notaries duties, may not authorize the public deed of separation.
Spouses must appear personally to sign it, notwithstanding the fact that they must be assisted by a practicing lawyer, by giving their consent before the Clerk of the Court or the Notary. Similarly, children of a majority age or emancipated minors must give their consent before the Clerk of the Court or Notary on measures concerning them due to their lack of personal income and to the fact of living in the family home.
2. The provisions of this article shall not apply in the case of non-emancipated minors or children with legally modified capacity who are dependent on their parents”.
The divorce shall be filed through a public deed consisting of a statement of the spouses on their willingness to divorce, together with the separation agreement.
One of the most important requirements for allowing a divorce through the notary instead of the court is that there may not be any non-emancipated minors or children with legally modified capacity. In these cases it is compulsory to go to court.
If there are adult or emancipated children, they shall give consent "regarding measures affecting them due to the lack of their own income and to the fact of living in the family home."
This consent is essential –otherwise the separation agreement and the divorce will not be approved. They must therefore be present when the public deed is executed, although the law does not require their personal appearance and they can be represented by proxy.
As for the notary, any notary can be chosen in the jurisdiction for the last common residence or for the habitual residence of any of the applicants.
Spouses must intervene “personally” in the execution of the public deed. They must be present simultaneously for signing the deed.
Another important issue is that, as set out in Article 54.2 of the Notaries Act, "2. Spouses must be assisted by a practicing lawyer in the execution of the public deed".
In other words, legal aid is mandatory hereby –the lawyer must be present at the signature of the separation agreement and the deed, as the lawyer or lawyers of both parties must also sign the deed.
The separation agreement shall be included or transcribed in the deed, with at least the content mentioned in Article 90 of the Civil Code. The deed may also include the settlement of common assets.
A certain control over the agreement to be submitted by the spouses is also exercised, as Article 90 of the Civil Code provides that "When the spouses formalize any agreements before the Clerk of the Court or Notary and the latter deems that, in his opinion, some of these agreements could be harmful or seriously damaging to one spouse or one of the adult children or emancipated minors affected, they shall inform the spouses of this, and the procedure shall be brought to an end. In this case, the spouses may only resort to the Judge for the approval of the proposed separation agreement "
There is no legal basis at present for such control because there is no database enabling a notary or a Clerk of the Court to know that an agreement has been rejected by another notary. We will therefore have to wait until a system has been created that allows exercising this type of control.
Julia Crespo Biehler – Balms Abogados Marbella