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Marriage, Separation and Divorce in Spain

Marriage, Separation and Divorce in Spain

2.2 Spanish Legislation of Separation

1) SPANISH CONSTITUTION 1978 (CE)

Article 149.1 The State shall have exclusive competence over the following matters:

[...] (8) Civil legislation, without prejudice to the preservation, modification and development by the Autonomous Communities of their Civil, foral or special law, wherever these exist. In any event, rules for the application and effectiveness of legal provisions, civil relations arising from the forms of marriage, organisation of public records and public instruments, bases of contractual obligations, rules for resolving conflicts of law and rules for determining the sources of law with respect, in this last case, for the rules of foral or special law.

2) SPANISH CIVIL CODE 1889 (CC)1

Book I: Persons; Title IV: Marriage; Chapter VII: Separation Article 81

Separation shall be judicially decreed, regardless of the form in which the marriage was contracted:

(1) At the petition of both spouses, or of one of them with the other’s consent, at the expiration of one year after the marriage was contracted. The petition for separation must be accompanied by a proposal for a regulatory agreement to govern the separation in accordance with Articles 90 and 103 of this Code.

(2) At the petition of one of the spouses, when the other has incurred a legal ground for separation. Article 82

1 As amended by the Act 30/1981, 07.07.1981.
Spain - Appendix

2 The following are grounds for separation:

(1) The unjustified abandonment of the family home, marital infidelity, abusive or offensive conduct and any other serious or reiterated infringement of conjugal obligations.

Marital infidelity cannot be alleged as a ground for separation when there exists a prior separation in fact of the spouses, by mutual consent freely given, or imposed by the spouse alleging it. (2) Any serious or reiterated infringe ment of the obligations regarding the common children or regarding those of any of the spouses who reside in the family home.

(3) Sentence to imprisonment for longer than six years.

(4) Alcoholism, drug addiction, or mental abnormalities, provided that the interests of the other spouse, or of the family, require the spouses to discontinue living together.

(5) The effective cessation of marital life in common for a period of six months by free consent. Such consent shall be understood to be freely given where a spouse requests it from the other spouse in authentic form, giving him or her express notice of the consequences of doing so, and the other spouse fails to manifest his or her will against it by any legally permissible means, or petitions a separation or the provisional measures to which Article 103 refers, within six months of the required summons.

(6) The effective cessation of marital life in common for a period of three years.

(7) Any of the grounds for divorce in the terms provided by numbers 3, 4 and 5 of Article 86.

 

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