How to Divorce When Your Spouse Cannot Be Located?
Divorce can be a complex and emotionally charged process even under the best of circumstances. However, it becomes significantly more challenging when one spouse cannot be located. In such cases, the proceedings shift from a mutual or uncontested divorce to what is known as a contentious divorce or contested divorce. These situations require navigating through additional legal hurdles, as the court must compensate for the absence of one party while ensuring that the rights of both spouses are respected.
In Spain, the legal framework for dealing with such cases is outlined in the Ley de Enjuiciamiento Civil (Civil Procedure Law), particularly Article 156. This legislation provides mechanisms that allow for divorce proceedings to continue even when one of the spouses cannot be found. Let’s delve into how this process works, what steps are involved, and what you should do if you find yourself in this difficult situation.
What is a Contentious Divorce?
A contentious divorce occurs when one spouse files for divorce without the consent or participation of the other spouse. In this type of proceeding, the court becomes actively involved in determining the outcome of various issues, including child custody, division of assets, and spousal support. The process can take longer and may be more emotionally and financially draining compared to a mutual divorce where both parties agree on the terms.
But what happens when the other spouse is missing or cannot be located? Does that mean the divorce cannot proceed? Fortunately, Spanish law provides ways to address this, even if the absent spouse is untraceable.
The Legal Framework for Divorcing an Untraceable Spouse
According to Article 156 of the Civil Procedure Law, if a spouse cannot be located, the divorce process can still move forward. In such cases, the divorce lawyer will file a petition with the court, indicating that the whereabouts of the other spouse are unknown. The court will then initiate a process to search for the missing spouse through various official channels.
These searches typically take place through telematic (electronic) means, leveraging databases and records from different public institutions. This could involve checking with local or national registers, tax authorities, social security, or even electoral rolls. In some instances, private investigations may be conducted to attempt to locate the missing spouse.
If, after a diligent search, the spouse still cannot be found, the court can proceed with the divorce. The spouse may be declared “en rebeldía” (in default or in contempt), allowing the divorce to be finalized in their absence.
How Does the Search Process Work?
The search for an untraceable spouse is methodical and usually takes place in a sequence of steps:
- Request for Information: The lawyer representing the spouse initiating the divorce must formally request the court to conduct a search for the missing spouse. This request will detail all known information about the spouse, such as previous addresses, workplace, or any contact details.
- Telematic Search: The court will then use electronic databases and resources from various governmental organizations to attempt to locate the spouse. This may include records from tax offices, social security, and electoral databases.
- Notification Attempts: If an address is found, the court will send a formal notification to the spouse, informing them of the divorce proceedings and giving them the opportunity to participate. If the notification is returned as undeliverable or if no address is found, the court will proceed to the next step.
- **Declaration of Default**: If all attempts to locate the spouse fail, the court will declare them in default. This means that the divorce can proceed without their participation, and the court will make decisions on the division of property, custody, and other relevant issues based solely on the evidence provided by the spouse initiating the divorce.
How Long Does This Process Take?
Divorcing a spouse who cannot be located is generally more time-consuming than a typical divorce. The search process alone can take several months, depending on how long it takes to gather information from various official sources. Additionally, the court must ensure that all reasonable efforts have been made to notify the missing spouse, which can add further delays.
On average, a contentious divorce involving an untraceable spouse can take anywhere from six months to a year, depending on the complexity of the case and the efficiency of the court’s processes. If there are significant issues, such as disputes over child custody or property, the process could take even longer.
What If the Spouse Refuses to Divorce?
Even if the missing spouse is eventually located, there is the possibility that they may refuse to cooperate with the divorce proceedings. In such cases, the divorce can still proceed, although it may transition into a more complicated contentious divorce.
If there are no family or financial issues to resolve, such as child custody or the division of shared assets, the court will likely issue a divorce decree in favor of the spouse who initiated the process. Spanish law does not require both parties to agree to a divorce. If one spouse wishes to divorce, it can be granted, even if the other spouse is unwilling or uncooperative.
Importance of Legal Representation
Navigating a divorce where one spouse is untraceable or uncooperative requires specialized legal expertise. A lawyer experienced in family law and contentious divorces will be essential in ensuring that all necessary steps are taken to comply with the law and to expedite the process as much as possible.
An experienced divorce lawyer will be familiar with the investigative procedures required to locate a missing spouse and will know how to proceed if the spouse cannot be found. They can also provide invaluable advice on how to handle issues like child custody, asset division, and spousal support, even in the absence of the other spouse.
Next Steps for Moving Forward
If you find yourself in a situation where you need to divorce a spouse who cannot be located, it is important to act quickly. Delays in initiating the search process can extend the overall timeline for the divorce. Start by consulting a lawyer who specializes in divorce cases involving untraceable spouses. They will be able to guide you through the process, from filing the initial petition to completing the necessary searches.
Even though the process may seem daunting, Spanish law provides clear guidelines for dealing with these types of cases. With the help of a skilled lawyer, you can move forward with your life, even if your spouse cannot be found.
Conclusion
Divorcing a spouse who is missing or unwilling to cooperate is undoubtedly a complex process, but it is by no means impossible. Thanks to the Spanish Civil Procedure Law, individuals can still pursue a divorce even when their spouse cannot be located or refuses to participate.
Whether your spouse is missing or simply uncooperative, it is crucial to seek legal advice from an experienced divorce lawyer. Sandra Márquez, our divorce specialist, is ready to help you navigate these challenging circumstances. Contact us today at 692931116 or visit our website for more information.