Of separation and divorce

Marital separation is the unilateral act or by mutual agreement through which the spouses decide to end their cohabitation and therefore begin a life independent of each other. Separation requires that the couple have previously contracted marriage in any of its forms, civil or canonical.  

 

The effects of separation are the suspension of the married couple's life together and the possibility of linking the assets of the other spouse in the exercise of domestic power ceases.  

 

These effects of marital separation will occur from the finality of the sentence or decree that declares it or from the manifestation of the consent of both spouses granted in a public deed in accordance with the provisions of article 82 of the Civil Code. It is necessary to send testimony of the sentence or decree, or a copy of the public deed to the Civil Registry for its registration, without full effects being produced before third parties in good faith until this takes place.  

 

One of the differences that exist between separation and divorce is that with separation there is no breakup of the marital bond, while with divorce there is a breakup. 

 

Separation with minor children. 

 

Judicial separation will be decreed when there are minor children who are not emancipated or have judicially modified capacity who depend on their parents, regardless of the form of celebration of the marriage: 

 

At the request of both spouses or one with the consent of the other, after three months from the celebration of the marriage. It will begin by means of a lawsuit which will be accompanied by a proposal for a regulatory agreement in accordance with article 90 of the Civil Code. 

 

At the request of only one of the spouses, once three months have elapsed since the celebration of the marriage. However, this period will not be necessary to file the claim when the existence of a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the plaintiff spouse or the children of both is proven. or any of the members of the marriage. The demand will be accompanied by a well-founded proposal of the measures that must regulate the effects derived from the separation. 

 

Separation without minor, emancipated or adult children. 

 

Likewise, they may agree to their separation by mutual agreement after three months from the celebration of the marriage by formulating a regulatory agreement, either before the judicial secretary or public deed before a Notary, in which the measures that must regulate the effects will be determined. derived from the separation in the terms established in article 90 of the Civil Code. 

 

The spouses must intervene in the granting personally, without prejudice to the fact that they must be assisted by a practicing lawyer, giving their consent before the court secretary or Notary. Likewise, older children or emancipated minors must grant consent before the court secretary or Notary regarding the measures that affect them because they lack their own income and live in the family home.  

 

The de facto separation. 

 

If the marriage is de facto separated, the spouses for legal purposes will not only remain married, since no ruling has been issued declaring judicial separation, but the obligations of the matrimonial property regime remain in force and for which they will be responded to in a manner jointly supported by the spouses. 

 

As a preventive measure to avoid future conflicts, it is advisable, in a de facto separation, to sign a document whose content regulates family obligations (child support, use of the home, family responsibilities, etc.) in order to that later one of the spouses cannot denounce the other for a crime of abandoning the family.