What is a mutual consent divorce and why is it called an express divorce? 

 

A mutual consent divorce is a legal divorce procedure in which both spouses agree not only to divorce but also on the terms under which they do so. This means they jointly submit a proposed settlement agreement covering all key matters: child custody and visitation arrangements (where there are minor children), child maintenance, any spousal compensation payments, the use of the family home, and the division of shared assets, among other issues. Because both parties are in agreement, the court proceedings amount essentially to an endorsement of that private agreement, with no need for contested litigation. 

This type of amicable divorce is significantly faster and simpler.

 

The advantages of a mutual consent divorce are clear:

 

• Shorter processing time: with no disputes to resolve at trial, a mutual consent divorce can obtain a final ruling in as little as 3 to 6 months, compared to the 8–12 months (or more) that contested divorce proceedings can take.
• Lower costs: in a mutual consent divorce, both spouses can share a single solicitor and legal representative, significantly reducing legal fees. In a contested divorce, by contrast, each party must hire their own legal team, doubling the costs. The shorter duration of the process also means lower professional fees overall.
• Less conflict: this process is built on cooperation and agreement, which greatly reduces emotional stress. It is a more constructive approach that avoids courtroom confrontation as far as possible, benefiting not only the couple, but also their children, family members, and close friends.
• Control over the terms: as spouses, you decide the terms of the divorce yourselves (within the bounds of the law), rather than leaving those decisions to a judge. You have the opportunity to design an agreement tailored to your family's specific circumstances, which typically leads to outcomes that both parties find more satisfactory and easier to comply with.
• Greater privacy: because the matter is not aired in open court, the family's privacy is better protected. The settlement agreement is submitted privately and reviewed only by the judge (and the Public Prosecutor's Office where minor children are involved) for approval.

In summary, a mutual consent divorce is the most advisable route when both spouses are in agreement about how to organise their separation. In the sections that follow, we will set out the requirements that must be met to proceed by this route, and the documents you will need to prepare. 

 

 

 

Legal requirements and documentation for a divorce by mutual consent in Catalonia 

 

To process a divorce by mutual consent in Catalonia (and across Spain generally), certain basic legal requirements must be met: 

 

• Minimum marriage period: At least three months must have elapsed since the marriage took place before divorce proceedings can be initiated (unless there are exceptional circumstances involving a risk to the life or physical safety of one of the spouses or the children, in which case the law permits divorce at an earlier stage).
• Consent of both spouses: As one would expect, both parties must agree to the divorce and to its terms. This agreement is set out in writing in the divorce settlement agreement (convenio regulador), which is the central document in a divorce by mutual consent.
• Mandatory legal advice: The law requires that in any divorce, both spouses be assisted by a lawyer and represented by a court representative (procurador) before the court. In a mutual consent divorce, you may share the same lawyer and court representative, as there is no conflict of interests, which simplifies the process. The lawyer will be responsible for drafting the divorce claim and the settlement agreement, ensuring everything meets the legal requirements and representing your shared interests before the court.
• Joint divorce claim: The process begins by filing a joint mutual consent divorce claim signed by the lawyer and court representative. This joint claim must be accompanied by the settlement agreement setting out the arrangements reached.

In addition to meeting these requirements, you will need to gather certain supporting documents to submit alongside the divorce application.

 

 

Documents required for a mutual consent divorce

 

Here are the key documents that must be included: 

1. Marriage certificate: Issued by the Civil Registry. It must be recent (certified copies are only valid for a few months for these purposes).
2. Birth certificates of any children of the marriage, where applicable, to confirm their identity and age.
3. municipal registration (empadronamiento) certificate or proof of residence: To establish the marital home address or the current residence of each spouse. This helps determine which court has jurisdiction over the case (normally, the court corresponding to the family's last address in Catalonia).
4. National ID (DNI) or Foreigner Identity Number (NIE) for both spouses: A copy of each spouse's identity document.
5. Divorce settlement agreement drafted by the lawyer: This document, signed by both spouses and the lawyer, sets out all the terms agreed as part of the divorce (we explain more about the settlement agreement below).
6. Power of attorney (apud acta or notarial) granted to the court representative (procurador): You must authorise the court representative (procurador) to act on your behalf before the court. This authorisation can be granted before a notary or directly at the court through an apud acta appointment, a straightforward procedure in which you confirm your authorisation in person.
   

 

 

Competent court and the option of divorce before a notary 

 

A mutual consent divorce must be filed before the competent Court of First Instance:

Under Article 769.2 of the Spanish Civil Procedure Act, in mutual consent divorces the competent court is the one covering the last shared matrimonial domicile. If the spouses are already living in different judicial districts (for example, one in Barcelona and the other in Girona), either of you may choose to file for divorce in the court covering either spouse's current address, since both of you are joint applicants. In practice, couples tend to opt for the judicial district where one of the spouses lives, or where any children reside (if applicable), for convenience. 

 

That said, is going to court always necessary to obtain a divorce? There is an alternative route for couples who have no minor or dependent children: divorce before a notary. Since 2015, Spanish law has allowed spouses to divorce before a notary by means of a public deed, provided there are no minor children (nor adult children whose legal capacity has been modified by a court order) and that the divorce is by mutual consent. In Catalonia, you may use this notarial route if you meet those requirements. In that case, instead of filing a court claim, you would attend a notary's office together with your lawyer. 

 

The notarial procedure is very straightforward:

the notary will verify that the settlement agreement you have prepared is balanced and complies with the law, and will have you sign the divorce deed in the presence of your lawyer. The notary will then notify the Civil Registry so that the divorce is officially recorded. The entire process can be completed within a matter of days. It is worth noting that even in a notarial divorce, legal representation by a lawyer is mandatory (though a court procurator is not required, as there are no judicial proceedings). If there are any irregularities, or if the notary identifies anything that could be detrimental to either party, they may request amendments to the agreement or, as a last resort, refuse to authorise the deed and refer the matter to court. In the vast majority of cases, however, provided the conditions are met, a notarial divorce is a fast and valid option. 

 

In summary, if you meet the requirements (mutual agreement and no minor children), you may choose between divorcing through the courts (by filing the claim with the court) or doing so before a notary. In both cases, you will need a settlement agreement and a lawyer to advise you. Below, we outline the general steps involved when following the judicial route, which is the most common, before moving on to the specific considerations that apply depending on whether or not you have children. 

 

 

Steps for processing a divorce by mutual consent (step-by-step guide) 

 

Every divorce has its own particularities, but in general these are the main steps for a mutual consent divorce in Catalonia: 

 

1. Initial consultation and preparation of the divorce settlement agreement: The first step is to consult a family lawyer to explain your situation. The lawyer will advise you on the most suitable arrangements and will draft the divorce settlement agreement in accordance with your instructions. This agreement will cover all arrangements relating to any children (custody, visitation schedule, child maintenance), the family home, division of assets, bank accounts, compensatory maintenance where applicable, and so on. It is essential to take the time needed at this stage to ensure that both parties are satisfied with every detail of the agreement, thereby avoiding future misunderstandings.
2. Gathering the required documentation: While the agreement is being drafted, you should begin collecting the documents referred to above (marriage certificate, birth certificates for any children, municipal registration (empadronamiento), etc.). Your lawyer will advise you exactly what is required in your particular case. Having all documents in order will speed up the filing process.
3. Signing the claim and granting power of attorney to the court representative (procurador): Once the divorce settlement agreement is ready, both spouses sign it together with the lawyer. The claim for mutual consent divorce is then prepared alongside the agreement. At the same time, you will need to authorise the court representative (procurador): you may sign a notarised power of attorney before a notary granting them authority to represent you, or you may grant authorisation by appearance before the court (apud acta), which can often be done electronically if you hold a digital certificate. This step is necessary to allow the court representative to file the claim on your behalf.
4. Filing the claim with the court: The court representative (procurador) files the divorce claim with the competent Court of First Instance, attaching the settlement agreement and all required documents. If the documentation is in order, the court will accept the claim for processing fairly quickly.
5. Ratification before the judge: Once the claim is accepted, the court will summon both of you to appear together and ratify the settlement agreement. This is a straightforward hearing: both spouses attend (accompanied by your lawyer) and confirm before the judge or Court Registrar that you stand by the agreement as drafted and that you signed it voluntarily. If either party fails to attend or withdraws their consent, the mutual agreement divorce cannot be approved and contentious proceedings would need to be initiated. However, if everything proceeds smoothly, as is usually the case, ratification typically takes only a few minutes.
6. Involvement of the Public Prosecutor's Office (where there are minor children): If you have minor or dependent children, the settlement agreement is referred to the Public Prosecutor's Office following ratification. The prosecutor will review the arrangements relating to the children (custody, maintenance, etc.) to ensure they do not infringe the children's rights and that they serve their best interests. This step is a legal requirement: the State, acting through the Prosecutor's Office, serves as guarantor of minors in any family law proceeding. Provided the agreement is balanced, for example, it sets adequate maintenance payments and a reasonable contact arrangements, the prosecutor will generally give their approval without delay. Only if a clause were found to be detrimental to the children would the prosecutor issue a negative report identifying the necessary amendments.
7. Divorce ruling: Once the preceding steps have been completed, the judge will issue the divorce ruling approving the settlement agreement. In a mutual agreement divorce, the ruling simply gives legal effect to what you have agreed. This judicial decision formally dissolves the marriage. Where proceedings have been genuinely consensual, the ruling typically follows ratification within a matter of weeks. Once signed by the judge, your divorce takes legal effect, although it will still need to be registered with the Civil Registry.
8. Registry entry and obtaining the divorce certificate: The court will usually forward the ruling directly to the Civil Registry where your marriage is recorded, so that the divorce can be noted. It is worth confirming that this registration has actually taken place. Once it has, you can apply for a certified copy of the divorce entry from the Civil Registry, which will serve as official proof that you are legally divorced (useful for any future administrative procedures that require it).

As noted above, this entire agreed divorce process typically takes around 3–6 months from the filing of the claim to the final ruling, depending on the court's workload and whether the Public Prosecutor's report is required. In Catalonia, many courts aim to process uncontested divorces as swiftly as possible, given that there is no dispute to resolve. It is important to be patient and to follow your lawyer's guidance at each stage. If you opt for the notarial route (available where there are no minor children), the initial steps are similar, preparing the agreement, gathering documents, and signing before a notary, but you avoid the court ratification and the formal ruling: the notary converts the agreement into a public deed of divorce at the point of signing, making the process considerably faster.

 

In the sections that follow, we look at some specific situations in greater detail: how an agreed divorce works when minor children are involved, and what the process looks like when there are no children. 

 

 

Agreed divorce where there are minor children

 

When a couple seeking a divorce has minor children together, a divorce by mutual agreement requires careful consideration of a number of additional matters, all focused on protecting the children's wellbeing. The good news is that a mutual agreement divorce involving children is perfectly achievable, and indeed strongly recommended, as it spares children the stress of a contested process, but it does involve certain extra steps and oversight. 

 

Key matters to agree on regarding the children: The settlement agreement must set out all arrangements relating to the minor children in detail. The main points are: 

 

• Custody and care arrangements: Who will have day-to-day care of the children? This may be shared custody (dividing time between both parents, for example, on alternate weeks, or whatever arrangement best suits the family) or sole custody in favour of one parent (with the other having visiting rights). In Catalonia, shared custody is an increasingly common and favoured option where it is workable, but it must be agreed upon by both parties and suited to the family's circumstances.
• Visiting and contact arrangements: Where custody is not shared on a 50/50 basis, the agreement must set out the periods during which the non-custodial parent will spend time with the children, for example, alternate weekends, a weekday afternoon, half of school holidays, and so on. It is essential that the schedule is clearly defined to avoid future disputes. Even where custody is shared, it is advisable to set out the calendar in precise terms.
• Parental responsibility: Under Spanish law, parental responsibility (meaning the right to make major decisions regarding children's education, health, and so on) remains shared by both parents even after divorce, except in exceptional circumstances. In an amicable divorce, this does not change, the agreement simply records that both parents will exercise it jointly.
• Child maintenance: You will need to agree on the amount of child maintenance that one parent will pay towards the children's upkeep (typically paid by the non-resident parent to the parent with whom the children primarily live, or shared proportionally where there is equal shared custody). It is also common to agree on how extraordinary expenses for the children will be split (non-covered medical costs, special activities, etc.), usually 50/50 unless a different arrangement is agreed.
• Use of the family home: If you have a family home and the children will primarily live with one of you, it is common to agree that the children remain in their usual home with that parent, in order to provide stability. This means that the right to use the family home is assigned to the children and the custodial parent for as long as the children are minors (even if ownership of the property remains with both parties or with whoever holds title). This is an important point to set out clearly in the agreement.
• Other arrangements regarding the children: For example, how custody handovers will be managed (handover locations, transport arrangements), any basic parenting guidelines you wish to put in writing, how the children may communicate with the other parent during their time with you, and so on. The more comprehensive and clear the agreement is on matters relating to the children, the better, it helps to avoid misunderstandings further down the line.
  

 

Review by the Public Prosecutor's Office:

As mentioned in the steps above, in divorces involving minor children the separation agreement will be reviewed by the Public Prosecutor's Office once you have ratified it before the judge. The Public Prosecutor will verify that the arrangements adequately protect the children and that nothing in the agreement is contrary to their interests (for example, an unreasonably low child maintenance payment that could leave them without adequate support, or a contact arrangement that is detrimental to their wellbeing). If everything is in order, the Prosecutor will give their approval and the judge will issue the ruling of divorce, endorsing the agreement. Should the Prosecutor identify any deficiency, you would need to correct that point in the agreement (usually something that can be resolved quickly with the help of a lawyer by adjusting the relevant clause) before the ruling can be issued. 

 

 

Notarial divorce not available where minor children are involved:

It is important to bear in mind that if you have minor children, you cannot use the notarial divorce procedure; the law requires that a judge approve any arrangements concerning the children. Your route will therefore necessarily be a court-based divorce by mutual agreement, following the steps already described. Even so, this remains a relatively swift and low-conflict process compared to contested proceedings. In general, a mutual agreement divorce involving children in Catalonia typically takes around 3 to 6 months (sometimes slightly longer if a report from the Prosecutor's Office is required), but it is still considerably faster than a contested trial.

 

 

Mutual consent divorce without children (couples with no children or with adult children) 

 

Where a married couple have no children together, or whose children are already adults living independently, a mutual consent divorce tends to be more straightforward, as there are no custody or maintenance arrangements to agree. That said, other important matters still need to be addressed, such as the division of assets and any spousal maintenance payments.

 

Let us look at the key features of an amicable divorce without children: 

 

Speed of the process:

With no minor children involved, you have the option of using the notarial route to expedite the divorce, as explained above. Many childless couples choose this route, divorce before a notary, which can be completed in a matter of days once the separation agreement has been prepared. If you prefer or need to proceed through the courts instead (for example, where certain assets require a judicial decision, or simply for added legal certainty), the court process also tends to move quickly, as no report from the Public Prosecutor is required. Where there are no children, it is possible to obtain the divorce ruling in just over 3 months, provided there are no delays, since once the parties have ratified the agreement no further assessments need to be awaited. 

 

Division of assets and matrimonial property regime:

One of the key issues to resolve in a divorce without children is the division of jointly held assets (if any). In Catalonia, the default matrimonial property regime is separation of assets, meaning each spouse retains ownership of whatever is in their own name, and there is no joint community property (gananciales) as exists in other Spanish regions. That said, couples typically do acquire assets together (for example, a jointly purchased property, vehicles, shared bank accounts, and so on).

 

In a mutually agreed divorce settlement, you can set out how those shared assets will be divided: 

 

• If you jointly own a property, you can agree that one spouse keeps it and compensates the other financially, or that it is sold and the proceeds divided. The same applies to other high-value assets.
• Regarding shared savings or debts, it is also advisable to set out how these will be handled, for example, what happens to a joint bank account, or how mortgage payments will continue to be made until the property is sold.
• If you are married under a community property regime (gananciales), whether because you entered into a prenuptial agreement to that effect or because you moved to Catalonia from another Spanish region where that regime applies, you can carry out the dissolution and liquidation of the community property on an amicable basis as part of a mutual-consent divorce. This can be done within the divorce settlement agreement itself or in a separate notarial deed. The key is to clearly establish who keeps each asset and how any liabilities are shared.
  

 

Compensatory pension:

Another matter to consider is whether either spouse will need a compensatory pension after the divorce. A compensatory pension is a right that arises when the breakdown of the marriage creates a financial imbalance to the detriment of one of the spouses, for example, if one party has very low income or gave up their career to look after the home, while the other is in a comfortable financial position. In a mutual consent divorce, you are free to agree whether a compensatory pension will be paid, in what amount, and for how long, provided both parties are in agreement. If neither party wishes to claim one, it is sufficient to state in the settlement agreement that you are both waiving it, or that it does not apply because both parties are in a broadly equivalent financial position. 

 

 

Fewer post-divorce formalities:

With no minor children involved, once the ruling or notarised divorce deed has been obtained, the process is essentially complete. The only remaining step, as in all cases, is registering the divorce with the Civil Registry. After that, each party is free to move on with their life without any mutual legal ties. Of course, if you have agreed on any payments, such as a deferred compensatory pension or the settlement of a shared loan, these must be honoured, but you will not need to maintain a co-parenting relationship as you would if children were involved. In many respects, an amicable divorce with no children is considerably more straightforward to manage. 

 

Practical example:

Consider a couple in Barcelona who decide to divorce amicably and have no children. They jointly own a flat. In the separation agreement, they can agree that the wife will take ownership of the flat and assume the remaining mortgage, compensating the husband with a set amount for his share. They also agree on how to divide the furniture and the car. Neither will claim a compensatory allowance, as both are in employment. All of this is set out in the agreement. They then attend a notary appointment with their lawyer, bringing their marriage certificate and municipal registration (empadronamiento); at a single appointment, they sign the deed of divorce before the notary. Within a few days, they receive confirmation that the divorce has been registered. In this way, they have achieved a swift, cost-effective and amicable divorce. 

 

In conclusion, having no children simplifies a mutual consent divorce considerably, and the notarial route makes it possible to complete the process far more quickly. Even the court route, however, is a straightforward procedure. The key is to seek proper legal advice so that every detail is covered in the separation agreement, avoiding any complications down the line. 

 

 

Practical tips for navigating a mutual consent divorce smoothly and amicably 

 

Even when a divorce is by mutual agreement, it remains an emotionally sensitive process. Here are some practical tips to help you and your partner navigate the divorce as amicably and smoothly as possible: 

 

• Open communication and mutual respect: Maintaining honest dialogue is essential. Express your concerns and needs calmly, and listen to each other's perspective. Treating one another with respect throughout the process lays the groundwork for a healthy relationship after the divorce, particularly if you will remain in contact because of your children.
• Focus on common ground: When negotiating the settlement agreement, start from the points you already agree on and then work through the more difficult issues. Remember that the goal is to reach mutually beneficial outcomes, a win-win for both parties. Where disagreements arise, consider creative or flexible alternatives. The mindset should be collaborative, not adversarial.
• Put your children's wellbeing first: If children are involved, always place their needs at the centre. Avoid arguments in front of them and do your best to reassure them. It is beneficial for children to see their parents working as a team for their sake. Drawing them into the conflict or asking them to take sides only causes emotional harm.
• Professional and emotional support: Rely on trusted professionals. An experienced family lawyer will not only handle the legal aspects but will also give you the peace of mind that comes from knowing everything is being done correctly. If tensions arise, working with a family mediator can facilitate communication and resolve minor friction before it escalates. On the emotional side, do not hesitate to seek psychological support if you need it, it is entirely normal to go through ups and downs during a divorce, even an amicable one. 

Put all agreements in writing: Even if you are on excellent terms, never leave anything agreed "by word of mouth" alone. All agreements must be clearly set out in the written separation agreement. This will prevent misunderstandings or differing recollections down the line. A thorough, well-drafted agreement is your best guarantee of a separation free from future disputes. 

Patience and flexibility: A divorce, even an amicable one, is a process that takes time, both administratively and emotionally. Be patient with each other throughout. Minor disagreements may arise; if they do, step back and return to the conversation when you are both calmer. Flexibility and empathy towards your spouse's situation will help both of you make the concessions needed to reach a balanced agreement. 

Look to the future with a positive outlook: This divorce is not a failure, it is a mature decision that allows both of you to move forward and live better lives. Maintaining a positive, cooperative attitude will help you get through this chapter more quickly and begin the next one without resentment. A well-managed mutual consent divorce can even lay the foundations for a new friendship or cordial relationship between both former spouses in the long term. 

By following these tips, you will be helping to make the divorce process as smooth as possible. Remember that even when difficult moments arise, the ultimate goal is for both of you to move forward with your lives in the best way you can, and, where children are involved, for them to adapt within a peaceful environment. 

 

Mutual consent divorce vs contested divorce: A quick comparison 

To illustrate the differences more clearly, below is a comparative table setting out the key distinctions between mutual consent divorce (amicable or express divorce) and contested divorce (where the parties cannot reach agreement and the matter proceeds to litigation). This comparison summarises the key aspects: 

 

(Timescales and cost figures are approximate; individual cases may vary.) 

As the above comparison shows, mutual consent divorce offers significant advantages in terms of time, cost, and reduced conflict. For this reason, whenever it is possible to reach basic agreements, it is preferable to exhaust the amicable route before embarking on contested proceedings. Even where disagreements exist at the outset, negotiations can often be facilitated with the help of lawyers or mediators. Contested divorce should be the last appeal when there is genuinely no way to agree on fair terms between the parties. 

 

Relevant legislation governing mutual consent divorce

To gain a thorough understanding of mutual consent divorce in Spain and Catalonia, it is essential to be familiar with the legal framework that governs it: 

• Article 81 of the Civil Code: This provision establishes the basis for divorce, confirming that it may be petitioned by both spouses jointly without the need to allege any specific grounds. 
• Article 83 of the Spanish Civil Code: Governs the effects of divorce on the spouses and the family, including provisions on maintenance, assets, and custody arrangements. 
• Article 86 of the Spanish Civil Code: Sets out the rules on compensatory maintenance, establishing the criteria for its award (financial imbalance arising from the breakdown of the marriage). 
• Law 15/2005, of 8 July: A landmark reform that abolished the requirement for prior legal separation and simplified divorce by mutual consent, amending both the Spanish Civil Code and the Civil Procedure Act. by virtue of this reform, the term "express divorce" was coined for mutually agreed divorces, which now require, except in exceptional circumstances, only three months of marriage.
• Articles 767 to 770 of the Civil Procedure Act (LEC): 
• 767: Special procedure for applications to vary existing arrangements and for divorce proceedings. 
• 769.2: Territorial jurisdiction rule, assigning cases to the court of the spouses' last shared domicile for divorce by mutual consent.

Familiarising yourselves with these legal references will help you better understand your rights and obligations, and ensure that the divorce settlement agreement strictly complies with the requirements of the law. 

 

 

Do you need professional assistance with your mutual consent divorce in Catalonia?

 

At Iusfamilia, we are specialist family law solicitors and we would be delighted to guide you through this process. We offer an initial consultation in which we will assess your individual circumstances and answer all your questions about divorce, whether children are involved, assets, maintenance, pensions, and more. 

We understand how important it is to feel supported and understood at a time like this. Our team will provide a personal, empathetic, and fully confidential service, always acting in your best interests and seeking the quickest and most amicable resolution. We will handle all the legal formalities, from drafting the separation agreement to obtaining the ruling or notarial deed, so that you can focus on your own wellbeing and that of your family. 

 

Contact us today to arrange an in-person or virtual consultation with no obligation. At Iusfamilia, we will make the path to your new beginning as straightforward as possible. We are here for you every step of the way.