The registration of the agreement governing the separation and divorce in the property registry

The processes of separation and divorce always involve a crisis in the personal relations of the spouses. Sometimes the tension created is so high that it is difficult to resolve and organize the personal and economic consequences that separation or divorce causes.

Decisions about child care, the children’s visitation regime with their respective grandparents, the granting of use of the family home, possible compensatory pension, the abolition of the spousal economic regime or even the purpose and care of pets are complex issues that will determine the outcome of the marital crisis and the existence or not of good future relations between all the people involved.

Since the reform of 1981, the regulation of marital crisis processes in our Civil Code tries to strengthen the consent of the spouses by signing an agreement regulating the consequences of separation or divorce.

This agreement will include the agreement reached between the parties in relation to all the matters I mentioned before. In addition, the agreement may include all measures that the spouses decide to take and which are related to the consequences of the separation or divorce, even if they are not expressly mentioned in Article 90 of the above-mentioned Civil Code.

Especially important in the content of the contract is everything related to the liquidation of the existing economic relations between the two persons who are separating.

The estimate of the pension that each must pay for the maintenance of the children, or that which must be paid to the spouse whose economic situation worsens as a result of the separation, as well as the entire complex procedure for the liquidation of a conjugal economic regime.

Where there is real estate among the assets of the spouses, the agreement will determine how ownership of those assets remains after the dissolution of the marriage.

This change of ownership can access the land registry.

The registration of the regulatory agreement in the Register raised as the first practical problem related to the form that said agreement should take. Article 3 of the Mortgage Law establishes as a general rule the need for the document accessible from the register to be a public document.

A separation agreement is a private document signed by the parties. The question is whether the notarization of this agreement was necessary or whether its approval in the judgment of separation or divorce was sufficient.

DIRECT REGISTRATION OF THE REGULATORY AGREEMENT

Fortunately, the General Directorate of Registrations and Notaries (today the General Directorate of Legal Security and Public Trust) since the 1980s allows the direct registration of the regulatory contract, approved with the relevant sentence and without the need for a notarial deed.

In this way, the access of these agreements to the Property Registry is facilitated and cheaper, avoiding the subsequent procedure of issuing the deed, a procedure that implies a new intervention of the ex-spouses before the notary, an action that is not always simple in the case of people , which They experience a situation of tension resulting from the marital crisis.

It is important to remember that the content of the regulatory agreement can be as broad as the parties see fit, as long as they are agreements related to the resolution and liquidation of personal and property relations arising from marriage.

In this sense, the Supreme Court (judgment of July 18, 2014) even allowed the inclusion in the regulatory contract of a donation of the family home made for the benefit of the children: «The declaration of the donor and the donee, in the case of real estate, it meets the provisions of Article 633 of the Civil Code, regarding the requirement for a public act, by including it in the aforementioned agreement, which has the value of a public document, without the subsequent provision of a public act being necessary for its formation when considering a measure that affects the family home , undertaken within the framework of the resolution of the family crisis which is the subject of the agreement, with access to the property register for registration.

In this line of the amplitude of the content that is likely to be included in the regulatory agreement, it should be remembered that it is possible to agree in said agreement the creation of guarantees to guarantee compliance with the economic obligations assumed by the former spouses.

For example, it would be possible to agree on the establishment of a mortgage that guarantees the payments that one of the spouses has undertaken under the regulatory agreement.

Perhaps in this way it will facilitate the effective implementation of the arrangements contained in this contract in the event that they are violated by the debtor.

We, land registrars, are always open to study and try to resolve the doubts that citizens and the lawyers who represent them in matrimonial proceedings want to raise about the agreements that can be included in a regulatory agreement so that it be directly entered in the register, without the need for additional procedures.

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