Regulatory Agreement in Spain: What It Must Include

🇪🇸 Read the original in Spanish

Facing a relationship breakdown is one of the most complex and emotionally draining moments a person can experience. When there are children in common or shared assets, the need to regulate the future becomes an absolute priority to avoid endless conflicts. In Spain, the convenio regulador (regulatory agreement) is the fundamental legal instrument that allows spouses or parents to design their own rules of the game after a separation or divorce, guaranteeing family peace and, above all, the protection of minors.

What is a Convenio Regulador and What is its Legal Framework?

The convenio regulador is a family law legal agreement in which the parties, by mutual consent, establish the personal and financial consequences arising from a separation, divorce, or the breakdown of a pareja de hecho (de facto partnership) with children. Its great advantage is party autonomy: it allows the interested parties themselves, rather than a judge, to decide how their lives will be organised once cohabitation ceases.

This document finds its main legal basis in the Spanish Civil Code, specifically in its Article 90, which details the minimum content the agreement must present to be approved. Furthermore, Law 15/2005, of July 8, marked a historic milestone by introducing divorce without the need to allege grounds and promoting the path of mutual agreement. For its part, Organic Law 1/2004, of December 28, on Integrated Protection Measures against Gender Violence, establishes impassable limits: mediation or mutual agreement in civil proceedings will not be possible if there are indications or active proceedings for gender violence, and the case must be referred to the Juzgados de Violencia sobre la Mujer (Courts of Violence against Women) to guarantee the safety of the victim and minors.

Mandatory Content of the Convenio Regulador According to Article 90 of the Civil Code

For a convenio regulador to be validated by a judge, a Letrado de la Administración de Justicia (Court Clerk, formerly known as secretario judicial), or a notary, it must mandatorily cover a series of points. Article 90 of the Civil Code requires that, at a minimum, the following points must be determined:

1. Childcare: Patria Potestad and Custody

It must be specified who will exercise patria potestad (parental responsibility—which usually remains shared by both parents, except in exceptional cases of deprivation) and who will have guarda y custodia (physical guardianship and custody).

• *Joint custody (custodia compartida):* The children alternate living with both parents for periods (weeks, fortnights, etc.). This is the preferred option in current jurisprudence.
• *Sole custody (custodia monoparental o individual):* The children live regularly with one of the parents, and a visitation schedule is established for the other.

2. Visitation, Communication, and Stay Schedule

In the case of sole custody, or even in joint custody to regulate holiday periods, the following must be detailed meticulously:

• Alternate weekends (with or without overnight stays).
• Midweek visits (weekday afternoons).
• Splitting school holidays for Christmas, Easter (Semana Santa), and Summer at 50%.
• Telephone or video call communication arrangements.

3. Allocation of the Use of the Family Home and Household Goods

It must be determined who will continue residing in the family home. The law prioritises the best interests of the minor, so the home is usually allocated to the common children and the parent with whom they live. If there are no children, the court assesses which party has the interest most in need of protection. It must be clarified who will cover the home expenses (comunidad (community fees), IBI (property tax), utilities, mortgage).

4. Child Support (Pensión de Alimentos)

This is the financial contribution to cover the ordinary expenses of the children (food, clothing, education, housing, healthcare). It must include:

• The fixed monthly amount.
• The method for annual updates (generally linked to the variation of the IPC (Consumer Price Index) published by the Instituto Nacional de Estadística (National Statistics Institute)).
• The proportion in which both parents will cover extraordinary expenses (medical expenses not covered by social security, agreed extracurricular activities, etc.), which is usually split 50% each.

5. Spousal Maintenance (Pensión Compensatoria, if applicable)

Regulated by Article 97 of the Civil Code, this is established when the separation or divorce causes an economic imbalance for one of the spouses in relation to the position of the other, implying a worsening of their previous situation during the marriage. It can be temporary, for life, or consist of a single lump-sum payment.

6. Liquidation of the Matrimonial Property Regime

If the spouses wish, they can use the agreement to liquidate their economic regime (sociedad de gananciales (community of property), separación de bienes (separation of property), or participación (participation regime)), allocating common assets and debts.

Practical Step-by-Step Procedures for Approving the Agreement

Drafting the agreement is only the first step. For it to have full legal effect and be enforceable in the event of non-compliance, it must be judicially approved (homologado) or executed as a public deed.

``` [Drafting the Agreement] ➔ [Signing by the Parties] ➔ [Filing the Lawsuit/Notary] ➔ [Ratification] ➔ [Approval and Registration] ```

Step 1: Negotiation and Drafting of the Document

Both parties, ideally assisted by their respective lawyers (or by a single lawyer by mutual agreement to reduce costs), draft the clauses of the agreement, adjusting them to their family and financial reality.

Step 2: Signing the Convenio Regulador

Once drafted and agreed upon, both spouses/parents sign every page of the document to show their consent.

Step 3: Filing the Mutual Consent Lawsuit (Judicial Route)

A petition for separation or divorce by mutual consent is filed before the Juzgado de Primera Instancia (Family Court of First Instance) of the family home, accompanied by the signed agreement, marriage and child birth certificates (issued by the Registro Civil (Civil Registry)), and a general power of attorney for the procurador (court representative).

Step 4: Ratification in Court

The Court will summon both spouses within approximately 1 to 3 months (depending on the court's workload) to appear and ratify their signatures. This is a simple act where they confirm they signed the agreement voluntarily and wish to proceed with the agreement.

Step 5: Intervention of the Public Prosecutor (Ministerio Fiscal, if there are minors)

If there are minor or legally incapacitated children, the agreement is sent to the Ministerio Fiscal (Public Prosecutor's Office) to issue a report. The Prosecutor will look out exclusively for the best interests of the minors. If they consider that any clause harms them (for example, a child support payment that is too low), they will object and request its modification.

Step 6: Approval Judgment and Registration

The Judge will issue a ruling decreeing the divorce or separation and approving the convenio regulador. The Court will automatically send a certified copy of the ruling to the Registro Civil for free registration.

Alternative Route: Notarial Divorce ("Divorcio Express")

Since the entry into force of the Ley de Jurisdicción Voluntaria (Voluntary Jurisdiction Act), if there are no minor children or children with judicially modified capacity, the agreement can be executed before a Notary via a public deed. This procedure is much faster (it can be resolved in 7 to 15 days), but it mandatorily requires the assistance of a lawyer at the signing before the notary.

Deadlines, Amounts, and Key Figures You Must Know

To avoid surprises and plan the process correctly, keep the following timeframes and financial variables in Spain in mind:

• Minimum period to request a divorce: At least 3 months (90 days) must have elapsed since the marriage took place to file the petition for separation or divorce (except in cases of risk to life or physical integrity, in accordance with Article 81 of the Civil Code).
• Duration of the judicial mutual consent procedure: It usually takes between 2 and 6 months, depending on the saturation of the corresponding judicial district.
• Duration of the notarial procedure: Between 7 and 15 business days from the moment all documentation is provided.
• Average cost of a mutual consent agreement: If a lawyer and procurador are shared, the total cost per spouse can range between 300 € and 600 €. If the procedure is notarial, notary fees are usually around 150 € to 300 €, to which the lawyer's fees must be added.
• Pension updates: This is mandatory every 12 months, usually taking the Índice de Precios al Consumidor (Consumer Price Index or IPC) published by the INE as a reference.

Practical Examples of Applying Measures in the Agreement

To visualise how these rules translate into reality, we analyse two common scenarios:

Example 1: Sole Custody with Rented Housing and Shared Expenses

• The situation: Carlos and Sofía divorce by mutual consent. They have a 6-year-old child. Sofía gets sole custody of the minor.
• The housing: They live in a rented flat that costs 800 € per month. The agreement states that Sofía and the minor will retain the use of the home. Sofía will pay the rent in full from her income.
• Child support: It is established that Carlos will pay a child support pension of 250 € per month, which he will deposit into Sofía's account within the first 5 days of each month. This amount will be updated every January in accordance with the IPC.
• Extraordinary expenses: It is agreed that medical expenses not covered by Social Security (such as orthodontics costing 1,200 €) and school textbooks at the start of the year (200 €) will be paid at 50% by each parent, always requiring prior consultation and written acceptance (via email or WhatsApp) before incurring the expense.

Example 2: Joint Custody with Compensation for Income Disparity

• The situation: Javier and Marta opt for weekly joint custody of their two children aged 8 and 11. The use of the family home (owned and fully paid off) is allocated to Marta as the party with the interest most in need of protection for a limited period of 2 years, after which it will be sold.
• The income: Javier earns a net salary of 3,200 € per month, while Marta works part-time to balance family life and earns 1,100 € per month.
• The solution in the agreement: Although custody is shared 50% of the time, there is a clear disparity in income. To ensure the minors maintain a similar standard of living in both homes, the agreement establishes that Javier will pay Marta 300 € per month as child support for the minors (child support in joint custody due to imbalance). The common expenses of the minors (school, uniforms) will be paid from a shared bank account to which Javier will contribute 70% and Marta 30% of the necessary monthly funds.

Mistakes You Must Avoid When Drafting Your Convenio Regulador

The rush to end the breakup process or the desire to save costs in the short term often leads to poorly drafted agreements that, years later, end up back in court through expensive lawsuits to modify measures. Avoid these serious mistakes:

• Using generic internet templates: Every family has unique circumstances. A "copy-paste" agreement will omit crucial details regarding hand-over times, the distribution of specific holidays (such as Three Kings' Day or the parents' birthdays), or the management of extraordinary expenses, leading to constant disputes.
• Not defining precisely what an "extraordinary expense" is: This is the source of 80% of post-divorce litigation. You must make it perfectly clear in writing which expenses require prior agreement from both (for example: extracurricular activities, school trips lasting several days, psychological or speech therapy treatments) and which are mandatory and must be split half-and-half without needing consensus (for example, emergency medical treatments).
• Making parallel verbal agreements ("handshake agreements"): Verbally agreeing that "you can pay me 100 euros less per month in support in exchange for me buying the clothes" has no legal validity. If the signed agreement states that the support is 300 €, the custodial parent can legally claim the accumulated 100 € difference from the last 5 years through a court enforcement order, regardless of any verbal promises.
• Ignoring the tax implications of the agreements: Transferring assets during the liquidation of the economic regime or paying spousal maintenance and child support has a direct impact on the IRPF (personal income tax) declaration. Failing to seek tax advice before signing can result in a penalty or an unexpected payment to the Agencia Tributaria (Tax Agency).

Frequently Asked Questions (FAQ)

Can a convenio regulador be modified once approved by the judge?

Yes, but not arbitrarily. To change the measures of the agreement (such as reducing child support or changing the custody arrangement), a procedure for the modification of measures (modificación de medidas) must be initiated. The essential legal requirement is that a substantial, unforeseen, and permanent change in the circumstances that existed when the original agreement was signed must have occurred (for example, the permanent loss of employment of the paying parent or a change of residence to another autonomous community). This can be done by mutual consent or through contested court proceedings.

What happens if one of the parents breaches what was agreed in the convenio?

As it is approved by a court judgment, the agreement is legally enforceable. If one of the parents fails to comply (for example, by not paying child support or not handing over the child at the agreed time), the other can file a lawsuit for enforcement of judgment (demanda de ejecución de sentencia) before the same court that approved the agreement. The judge will legally order the offender to comply under penalty of fines or, in the case of unpaid support, through the direct seizure of their bank accounts, salaries, or tax refunds. Furthermore, the repeated non-payment of child support for 2 consecutive months or 4 non-consecutive months constitutes a criminal offence under the Spanish Criminal Code.

Is it mandatory to hire a lawyer and a procurador for the agreement?

Yes, the intervention of legal professionals is mandatory by law in Spain to process a separation or divorce. In mutual consent cases, both spouses can share the same lawyer and the same procurador, which substantially cuts the costs of the process in half. If the procedure is carried out before a Notary, only the presence of a lawyer is mandatory.

What happens to pets in the convenio regulador?

Following the reform of the Civil Code that recognises animals as "sentient beings", the convenio regulador must mandatorily include the fate of companion animals. It must detail who they will stay with, how cohabitation and care times will be shared if a joint arrangement is chosen, and how the expenses associated with their maintenance and veterinary care will be covered.

Summary

• The convenio regulador is the legal document that governs family and financial relations after a mutual consent breakup, supported by Article 90 of the Spanish Civil Code.
• Its mandatory minimum content must include the regulation of patria potestad, guardianship and custody, visitation schedules, the use of the family home, child support, and spousal maintenance if applicable.
• The mutual consent route is faster (from 15 days at a notary to 3 months in court) and significantly cheaper than contested court proceedings.
• Any verbal agreement that is not reflected in writing and judicially approved lacks legal validity against future claims.
• Having the advice of a lawyer specialising in Spanish Family Law is essential to draft a solid document, adapted to the law, that protects the best interests of minors.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.