Separation of unmarried couple with children
One of the greatest uncertainties for a civil partnership is what would happen to their children in the event of a separation between them. For this reason, and as Notarios en Barcelona, today we want to explain everything about the separation of a civil partnership with children.
And the thing is, to reach this point, there must previously have been a civil partnership. This partnership offers various legal and economic protections both to the couple and to the children, whether regarding widow's pensions, allowances related to inheritance tax, or agreements that entail economic regimes adapted to the needs of the couple. If you want to learn more about how to become a civil partner before a notary, we recommend the following reading:
Breakup and separation of a common-law couple with children
However, when the relationship breaks down, the separation of a de facto couple with children is usually controversial and it is often necessary to establish how the new parent-child relationships will be formed.
The dissolution of the de facto couple can be done at a notary, but the adoption of measures relating to the children must be made judicially through a court process.
The couple who have minor children in common, in the event of the dissolution of their de facto couple, need to determine who will be responsible for the custody and care of their children and the visitation rights of the parent who does not have custody and care. There are two options, both of which will always involve a court ruling. The first is to reach a mutual agreement on how the new relationships will be formed, in which case the Judge will only have to ratify the parents' decisions, provided they are not harmful to the children. However, when an agreement between the parents is not possible, the custody, care and visitation measures will be established by the Judge according to the circumstances of the specific case.
We will now proceed to explain the most relevant characteristics of these two options. It is important to emphasise that we are referring to the measures of custody and care of the children, which is what the Judge must rule on. The dissolution of the couple can be done before a Notary, but nothing relating to the custody and care of the children can be determined.
Mutual agreement procedure
In this process, with a lower economic cost, a single claim is filed by the parents where the following must be agreed upon:
- The type of custody, whether individual (by one of the parents) or shared (between both). Additionally, the alternating living arrangements and the residence address will be determined, as well as the visitation and holiday arrangements. There may also be measures related to the grandparents.
- The allocation of the use of the family home: the parent who obtains individual custody usually obtains the use of the family home. In cases of shared custody, it is usually agreed that it be the parent with fewer economic resources.
- Child support and compensatory pension, if applicable.
On many occasions, cohabiting couples reach agreements and arrangements at the time of their union, so these measures will already be established. In any case, the agreement must be ratified in a court.
Judicial contentious procedure for the adoption of parental measures: custody and guardianship in the separation of a de facto couple with children without agreement
During this process, the maximum benefit of the minors will be ensured. It will be the judge who decides the custody of the minors after hearing the claims of the members of the de facto couple who separate without reaching an agreement regarding the children. This process is usually more costly when there is disagreement between the couple than when there is an agreement, as more work is required from the lawyers of both parties.
Housing in the separation of a de facto couple with children
In the separation of a de facto couple, each member has exclusive rights over their own assets. There will only be a need to divide, if they wish, the assets that were jointly acquired by both members of the de facto couple.
If the separation of a de facto couple occurs and they wish to sell their home, the profit will be divided according to the share each member had in the purchase. If agreed, there will be a termination of joint ownership of the assets and one of the members of the couple can keep ownership of the home by paying the other their share.
In the absence of an agreement, it could also result in a procedure for the division of common property and, ultimately, an auction.
In any case, we have already indicated that it will be the parent who obtains custody who will be granted the use of the common home.
What happens in separations of unmarried couples with minor children and rented housing?
When there are minor children, any measure affecting their custody and guardianship requires a judicial ruling. If both members of the couple are listed as holders of the rental contract, an agreement between them will first be sought, which will be ratified by the Judge if it is not seriously harmful to the children. If no agreement is reached between the members of the couple, it will be a judge who, instead of ratifying the decision of the members of the couple, must make the appropriate decision based on offering the greatest protection to the children of the former couple. However, when only one holder appears on the rental contract, the other may be substituted in the lease agreement.
JLA Notaries, for the separation of a de facto couple with children in Catalonia
Processing the dissolution of the civil partnership at the notary is easy as only the two members of the civil partnership or just one of them need to attend to sign the dissolution. The procedure is explained in detail in the following link:
However, the determination of custody and guardianship of the children must have a ruling from a Judge, so legal assistance will be required. At JLA Notarios we can dissolve your partnership but we cannot process measures related to the custody and guardianship of the couple's children.
Discover how easy it is to process a separation of a de facto couple with or without children along with their assets at our notary office. Make an appointment by writing to us at bcn@jlanotarios.com or by filling in the contact form on our website. Please remember that it will be necessary to come and sign the dissolution at our notary office in the Eixample district of Barcelona.
The team at JLA Notarios – Notary Barcelona hope to have been of legal assistance with this post. You can visit our notary office on Avenida Diagonal in Barcelona for any notarial service you may need.
