Divorce civil process

assumption of fact

  • Lucena, Andalusia, 06/14/2008

On June 14, 2008, Donya V. and Don M. got married. During the marriage, both had two children, one of whom was 2 years old and the other was 7 at the start of the litigation. The marital economic regime chosen by the parties is community property.

In the month of August 2019, they both decided to end their romantic relationship, so Donia V. contacted a lawyer to face the legal procedures of the divorce. As a result, Mrs. V. filed a divorce case against Mr. A. with a subsequent proposal for a statutory agreement on the regime between the spouses and their children when the marriage ended, since they were in the economic regime of family property and the property should to separate.

After filing the case, the two spouses reached an agreement on divorce, but at the meeting to ratify this agreement, Mr. M. declared himself dissatisfied with the content of the regulatory agreement, which is not the one agreed in the agreement between the parties. However, said unratified regulatory agreement is what ends up being enforced, so Don M. contacts a lawyer to get the agreement enforced.

Purpose: raised question

To apply the regulatory agreement to which he agreed, and not the one drawn up later by the legal representative of Doña V.

The strategy: proposed solution

He will file a lawsuit to modify the disputed divorce measures, because during the first trial they believed there were flaws in the agreement.


Changing the regime of divorce measures.


Maintain the settlement agreement signed by the parties in the previous contested divorce proceeding.


Regarding the Regulatory Agreement:

The normative contract that Mr. M. signed and which was prepared by the legal representative of Mrs. V., according to the plaintiff, does not meet the formal requirements to be enforceable, as it suffers from defects of consent. In the first place, Don M. did not have legal assistance for the trial because he had hoped in good faith that the verbal agreement he reached with his ex-wife would be enforced, but the signed statutory agreement was very different from what he expected. .As for maintenance, it was established that it was 500 euros per month, when the agreed amount was 350 euros.

The jurisprudence of the Supreme Court, for its part, establishes that if the agreement is signed under conditions in which the spouse does not have legal assistance, this agreement contains a defect in the consent by which it is void and cannot be enforced. The decision of the Supreme Court of November 7, 2018 reads:

“Once having contributed of such a nature to the disputed process, the party that signed it, but did not ratify it in court, will have to assert and justify in this process the reasons for its behavior, either due to non-compliance with the requirements of Art. 1255 cc, or because there is some defect in the consent given at the time, within the meaning of Art. 1265 cc, or because the circumstances that determined the initial consensus have changed significantly, which has nothing to do with an unjustified change of opinion, especially in cases like the present one, in which each of the spouses intervened, advised by a lawyer, in the preparation and signing the agreement.

Because defects of consent are present, Don M.’s legal representation finds that the signed but unratified statutory contract is null and void and the previously agreed upon verbal agreement must be enforced.


Upon termination of marriage:

The procedural representation of Donya V. considers that the marriage between her client and Mr. M. has been terminated by virtue of the provisions of Art. 86 of the Civil Code, which considers that the marriage can be terminated at the request of one of the parties, as long as the requirements of Art. 81 of the same law, which establishes:

“Separation will be decreed by court when there are unemancipated minor children or older children in respect of whom support measures have been legally established, attributed to their parents, regardless of the form of marriage:

1st At the request of both spouses or of one with the consent of the other, after three months have passed since the conclusion of the marriage. The request will be accompanied by a proposal for a regulatory agreement prepared in accordance with Article 90 of this Code.

2. At the request of only one of the spouses after three months have passed since the conclusion of the marriage. Expiration of this term will not be necessary to file the case when it is proven that there is a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and compensation of the plaintiff spouse or the children of both. or one of the members of the marriage.

The request will be accompanied by a reasoned proposal for the measures that will regulate the consequences of the separation.

The claim is upheld in part, without ruling on administrative costs.

The judge understands that there were defects in the plaintiff’s consent, as the requirements of Article 1255 of the Civil Code, which establishes:

“Contracting parties may establish such agreements, terms, and conditions as they deem convenient, provided they are not contrary to law, morality, or public policy.”

That there is some defect in the consent given pursuant to Article 1265 of the Civil Code:

“Consent given by mistake, violence, intimidation or fraud will be void.”

Or that the circumstances that determined the initial consensus have changed materially, that is, that the change of opinion is not unjustified. Therefore, a partial assessment of the claim is proceeded with a subsequent modification of the measures of the contested regulatory divorce agreement.

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