Judicial Separation in Spain

Updated on Tuesday 28th April 2020

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The separation of a couple in Spain has two basic meanings under the Spanish legislation. It is divided between de facto separation and judicial separation, which can take the form of agreed separation and non-agreed separation. There are relevant differences between the two terms. For instance, the de facto separation refers to the decision of the two spouses to live in separate homes, without them taking the legal action to end their marriage. 
 
De facto separation can also occur in the situation in which one of the spouses left the matrimonial home (in cases such as abandonment). In these situations, from a legal point of view, the couple is still considered married. If both parties (or one of the spouses) want a legal recognition of the separation, they can apply for judicial separation in Spain
 
However, it must be noted that even when the couple filed for judicial separation in Spain, the Spanish legislation will still see the marriage as a valid one and if the spouses want to end the marriage, they have to file for divorce. More information on how to file for divorce can be presented by our divorce lawyer in Spain.
 

What is judicial separation in Spain? 
 

Judicial separation designates a term through which a married couple can experience the idea of being separated from a legal point of view, without being an actual divorce. Provided that both parties are interested in living in different locations, they can file for agreed separation, a procedure to which married couples are entitled after being married for at least three months. 
 
Considering that this type of judicial separation in Spain is mutual, the procedure in itself is rather simple, its main advantage being that it can be easily reversible if the spouses want to give their marriage another chance. In the case in which the spouses have children, the legal separation petition must contain a parenting plan that will be approved by the judge. If, after a period of time, the parties still consider that they should be separated, they can file for divorce in Spain, a procedure in which married couples can be represented by our lawyer.  
 
Non-agreed judicial separation is the procedure in which only one of the spouses wants to separate from the other spouse. Just like in the case of agreed judicial separation, the couple must have been married for at least three months at the moment when the petition is filed, but in the case in which the spouse filing for separation is in danger, the petition can be made at any given moment after the wedding. 
 
Given the fact that only one of the party wants to separate from his or her spouse, the procedure is much complicated in practice, as the couple should negotiate on legal matters such as the common property, the custody of the children, alimony and others, even if these measures are taken for a determined period of time.  
 

What is the law on judicial separation in Spain? 
 

The legal grounds under which judicial separation in Spain can occur are prescribed by the Spanish Civil Code, more exactly Book I: Persons – Title IV: Marriage, Chapter VII: Separation. According to the regulations of the Spanish Civil Code, the separation in Spain can occur based on specific legal grounds. 
 
For example, a spouse can request the initiation of this procedure if the other spouse abandoned the family home, due to marital infidelity or to other infringements of the marital obligations. It must be noted that marital infidelity can’t be a legal ground for judicial separation if the parties already lived separated by mutual consent at the moment when the petition is made. 
 
Sentences to imprisonment longer than six years can also be a legal reason for separation in Spain, as is the infringement of any of the parental obligations towards children. A spouse can request this if the other spouse has any type of addictions that harm the family life, such as drugs or alcoholism, but mental disorders can also be used as a legal ground for separation
 

How many separations are registered in Spain? 
 

Separation in Spain is a less popular method compared to divorce in Spain. Spanish couples have the tendency of either stay married, or divorce at a given moment. For the last several years, the data on judicial separation in Spain shows a constant trend, as presented by National Statistics Institute (INE)
 
  • in 2013, 4,900 couples decided to opt for separation in Spain;
  • in 2014, there were 5,034 separations and in 2015, 4,652 separations;
  • in 2016, it slowly decreased to 4,353, while in 2017, it reached 4,280;
  • in 2018, Spain had 4,098 separations, Madrid having the highest requests, of 569;
  • the lowest number of separations, of only 2, was registered in the region of Avila
     
We invite married couples to address to our divorce lawyer in Spain for legal advice on how to file for judicial separation. Our lawyer can present more information on the rights and the obligations of the parties during this legal procedure, which can be reversed if the spouses will want to return to their family life.