In life, not everything lasts forever, and couples were not going to be the exception to that rule. There are situations in which a couple wants to break that relationship, for whatever reason, and begins a divorce process. There, the doubts of what happens with the children, the goods and properties, and also with the pets in common come into play. What happens when one gets divorced? Many ask themselves. To help answer these questions, ON has consulted the lawyer from Iuris Estudio Jurídico Bilbao, Olga Rodríguez, who invites do pedagogy of divorces and banish the myths that revolve around them.
First of all, and most importantly, it is to attend to the different processes of dissolution of a marriage that exist today, which are divided between divorces, separations and annulments. In this sense, Rodríguez explains that separation and divorce are two “practically identical” figures. Where they differ significantly is that the divorced person can remarry, but the separated person cannot, “because let’s say that the contractual relationship that in the end is a marriage is not broken,” he recalls. However, he already anticipates that currently very few people separate. “Before you had to separate, and then you had to get divorced”, but since the new divorce law he explains that you can get divorced directly; “People who take a step as serious as a marriage breakdown, I always say that 99% of people who break up go to divorce.” Yes indeed, that remaining 1% explains that it may be due to a religious issue, people who want to make a temporary cessation of coexistence, or people who really are not going to break up and who do it for economic reasons. “But 99% of people go straight to divorce,” she sums up.
On the other hand, regarding nullity, he explains that it is another concept, and that it is divided between civil nullity, or ecclesiastical nullity. The civil one arrives when the marriage, which is a contract, may have some reason why it cannot be consummated. “It could be due to a lack of consent, by a person who has been deceived, a person who has suffered ill-treatment…”, he explains, while adding that are reasons of sufficient weight that can cause that marriage to be declared null. And the ecclesiastical annulment takes an independent procedure, it is done in the special ecclesiastical courts, and it occurs when what a person does not want to remain is the elcesiastical bond.
On the other hand, in the case of those who are not married -stable cohabitation or common-law couples-, the procedure -although it cannot be called divorce- is the same. “What happens is that it is called the procedure for the adoption of parent-child measures. That is to say, you can not file divorce proceedingsbecause you are not married, but the law treats you the same”, adds this lawyer.
In short, for everything related to children, pensions, and who gets the house, it is the same. “There is only one very important difference in a break between who is married and who is not; the difference is the compensatory pension ”, he explains. But what does this pension consist of? It occurs when a person who has been with another, and one of the members of that marriage has stayed at home taking care of the children, supporting the family business, etc. while the other went to work. “Before it happened more than now, but it still happens,” Rodríguez clarifies. This compensatory pension It can only be requested for someone who has been married. Whoever comes from a relationship or a common-law relationship, after all, does not have access to it. “The compensatory pension is intrinsically related to the figure of marriage,” she concludes.
And, what happens when this divorce is not produced by mutual agreement? Here Olga Rodríguez also invites to banish myths. And it is that it does not happen like in the movies, that one of the parties has to go looking for the other to deliver the notification. “In Spain and in Europe, the system we have is not like in the United States,” she explains. Here, if one wants to break their relationship, they only have to meet one requirement; been married for more than three months. “If you meet that requirement, you can go directly to court and say I want to divorce or separate from this man or woman,” she says. AND the ruptures are not causal either; You do not have to give a reason to justify your desire to end the relationship.
“If you say I want to get divorced, that contentious procedure will automatically be activated. That the contentious procedure, the only difference with the mutual agreement -which is not little- is that the one who really has to make the decision is a judge. You have to file a lawsuit, a response to the lawsuit, hold a trial, present all the evidence and make decisions from there,” he explains, while acknowledging that it is a “longer, more expensive procedure, which takes emotional bill also to the parties”. Although there are also divorce procedures that begin as contentious and can later become mutually agreed processes. “Contentious is not when one party does not want to divorce, it is when the parties do not agree, and a third party has to decide. But that you do not want to separate or divorce that the court will not care. And in fact, If they sue you and you don’t appear, they declare you in absentia. They divorce you even if you have not appeared once in court, because no one can be forced to stay married, ”he recalls. That is where the work carried out by matrimonial lawyers comes into play. What they do as their first function is to analyze if it is possible to reach an agreement to try to avoid the conflict.
Of course, remember that there are people, in another order of things, who, although they want to start a divorce process -by mutual agreement or not- do not do it because “there are many people who do not get divorced for economic reasons, who do not can allow”. There remember that there are free legal guidance services available to those who need them.
properties
Also in a divorce you have to take into account the properties that are held in common, the goods, etc. There he explains that getting divorced is not the same as dividing common assets. “To get divorced is to get divorced personally. That is to say, I don’t want to live with you, and we are going to see how we do it with the children we have in common and who stays to live in the house that we all had together until now. That is divorce, ”he recalls. What is called dividing the properties, he emphasizes, is to liquidate the joint ventures or joint assets. There he recognizes that there are people who do everything at once, but others do not. That is, however, the economic part, but for her the central thing is the rupture of coexistence. “The important thing about divorce is if you have children, where you live, each one’s payroll to see the alimony of the kids… That is the important part of a divorce. The rest are already numbers. You have to make an inventory, you have to make some valuations of the assets and then you have to make some adjudications”.
Children and pets, beings to protect
And, now that animals have come to be considered sentient living beings, they are also more protected in the event of divorce. “Now, with the new regulations, it is established that the same custody regime must be established as if we were talking about children,” says Rodríguez, who emphasizes that it cannot be called custody, but a custody regime is established. “The idea is that, After the separation, you have to settle who is going to keep that animal, for how long, if it is going to be for alternate periods, who pays its maintenance expenses, etc.”
According to this lawyer, this new situation “is very good, because in the end he is one more member of the family, who has to suffer the breakup as little as possible, but also has responsibilities.” Likewise, she remembers that there is only one circumstance for which joint custody is not given, that there is gender violence, or violence with respect to children. “Well, it has also been assimilated that if there is also violence with respect to pets, joint custody or joint possession of the pet cannot be granted either.”
“Joint custody shall not proceed when either of the parents is involved in a criminal proceeding initiated for attempting to threaten the life, physical integrity, liberty, moral integrity or sexual liberty and indemnity of the other spouse or of the children who live together. With both. Nor will it proceed when the judge notices, based on the allegations of the parties and the evidence provided, the existence of well-founded evidence of domestic or gender violence. For these purposes, the existence of ill-treatment of animals, or the threat of causing them, will also be appreciated as a means to control or victimize any of these people ”, establishes in this sense Law 17/2021, of December 15, of modification of the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime of animals.
What happens, in this sense, in the case of victims of gender violence? How is your divorce process? There Rodríguez recalls that at the moment in which there is a component of gender violence -a complaint- automatically the competent court to process both the criminal procedure and the rupture procedure becomes a court of violence against women.
In short, Rodríguez finally remembers the importance of doing pedagogy, and of being correctly informed of the procedure to follow. “You have to find out, analyze case by case,” he says. In the end, as a matrimonial lawyer, she recognizes that In a divorce process, the focus must be placed on the children fundamentally. “Children are for many years. For fathers and mothers who, in a breakup, are able to focus on what they have in common, on the animals they have in common and on the feelings they have had in common, the post-divorce period is much more bearable”, she concludes. .
