Your spouse will not sign the divorce: divorce anyway
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You do not need a signature. Article 86 of the Código Civil orders the divorce to be granted at the request of one spouse alone where the requirements of article 81 are met, and the only time requirement is three months from the wedding. The claim is brought before the sección de familia del Tribunal de Instancia (the family section of the first-instance court) with a reasoned proposal of measures, and interim measures can be sought even before the claim.
You have spent four months asking your wife to sign an agreement and she does not answer. There are two children aged nine and six, a flat with a mortgage in both names and a joint account she draws money from. You earn 2,400 euros a month and she earns 1,100. You have been told there is no divorce without her signature, that you must wait a year of separation and that you would have to prove the marriage has broken down. Meanwhile nobody has decided who pays the mortgage or when you see the children.
The case, in five lines
- What is brought
- A contested divorce claim under article 86 of the Código Civil, with a reasoned proposal of final measures and an application for interim measures.
- Before which court
- The sección de familia del Tribunal de Instancia (the family section of the first-instance court), through the juicio verbal route with the special rules of article 770 of the Ley de Enjuiciamiento Civil.
- Deadline
- There is no lapse period for divorcing: the right is not lost. What does run is the period in article 81, which requires three months from the celebration of the marriage, unless there is proven risk to life, physical or moral integrity or sexual freedom, in which case the claim is filed without waiting.
- Who can bring it
- Either spouse, acting alone. Article 86 expressly allows the request of one spouse alone, without the other's consent and without grounds to plead.
- Financial risk
- The divorce itself is obtained, so what is at stake are the measures: custody, use of the home, child maintenance and the compensatory allowance. Expert valuations must be paid up front where asset values are disputed, and an award of costs is possible where clearly unfounded claims are pressed.
No signature is needed: divorce is not negotiated, it is claimed
Divorce in Spain requires neither agreement nor grounds. Article 86 of the Código Civil orders it to be granted judicially, whatever the form in which the marriage was celebrated, at the request of one spouse alone, of both, or of one with the other's consent, where the requirements of article 81 are met. Your spouse's refusal to sign blocks nothing: it turns the matter into a contested case and hands the decision on measures to the court.
What the refusal does change is the terrain. Where there is agreement the parties write the rules; here the judgment writes them under article 91, which directs the court to determine, in the absence of agreement or where it is not approved, the measures on the children, the family home, the fate of pets, the burdens of the marriage, the liquidation of the matrimonial property regime and the corresponding guarantees.
That is why the case is won long before the hearing. Article 81 requires the claim to be accompanied by a reasoned proposal of the measures that are to govern the effects of the divorce, and that proposal is your strategy document: what custody you ask for, with what maintenance, what use of the home, and what financial evidence supports every figure.
Three months from the wedding, and sometimes not even that
The only time requirement is that three months have passed since the celebration of the marriage, under the second paragraph of article 81 of the Código Civil, to which article 86 refers for divorce. There is no compulsory prior separation, no need to prove the relationship has broken down and no grounds to plead. Once that period has passed, the other spouse's opposition is legally irrelevant to the dissolution of the bond.
That period falls away where there is proven risk to the life, physical integrity, liberty, moral integrity or sexual freedom and indemnity of the claimant spouse, of the couple's children or of any member of the marriage. Article 81 then allows the claim to be filed without waiting, and that same fact later shapes custody and contact under articles 92 and 94.
Interim measures are decided months before the judgment
There is no need to wait for judgment before somebody decides who lives in the house, who pays what and when you see the children. Article 771 of the Ley de Enjuiciamiento Civil allows the spouse who intends to claim divorce to apply for the effects and measures of articles 102 and 103 of the Código Civil before the court of their domicile, and requires the parties and, where there are minor children, the public prosecutor to be summoned to a hearing within the following ten days.
The decision is fast and final: the court rules within three days by order against which no appeal lies, and it may decide urgent matters on custody and use of the home immediately, even before that hearing. In exchange there is a calendar trap: the effects and measures survive only if the divorce claim is filed within thirty days of their adoption.
If you prefer not to move first, article 773 allows interim measures to be requested in the claim itself, and by the defendant spouse in the defence where none were adopted earlier. These measures cease to have effect when replaced by those finally set out in the judgment or when the proceedings end in another way, so they set the financial and family climate of the whole case.
What is really fought over: custody, the house and maintenance
Shared custody is agreed where both parents ask for it, under paragraph five of article 92 of the Código Civil, but paragraph eight allows it exceptionally at the request of one party alone, with a report from the public prosecutor, on the basis that only in that way is the best interest of the child properly protected. Before deciding, the court must obtain the prosecutor's report, hear children with sufficient maturity and assess the parents' relationship with each other and with the children.
Paragraph seven closes that door in two situations: where either parent is subject to criminal proceedings for an attack on the life, physical integrity, liberty, moral integrity or sexual freedom and indemnity of the other spouse or of the children living with both, and where the judge sees well founded indications of domestic or gender violence. Article 94 applies an equivalent rule to contact arrangements.
As for the house, article 96 grants use, absent agreement, to the couple's minor children and to the spouse in whose company they remain, until they all reach adulthood. Money is decided on two separate levels: child maintenance under article 93, proportionate and open to updating, and the compensatory allowance of article 97, which requires financial imbalance caused by the breakdown and is measured against nine listed circumstances.
Staying away is expensive for the spouse who does it
The tactic of not turning up does not work. Rule three of article 770 of the Ley de Enjuiciamiento Civil requires the parties to attend the hearing in person, with a warning that unjustified absence may lead to the facts alleged by the party who does attend being treated as admitted for the purposes of their claims on final financial measures. The same consequence applies at the interim measures hearing.
Nor can your spouse turn the case into something else. Rule two of article 770 allows a counterclaim only in four listed situations, among them the spouse sued for separation seeking divorce, or seeking final measures not requested in the claim. And evidence that cannot be taken at the hearing itself is to be taken within the period set by the court, which may not exceed thirty days.
The case also keeps two exits open. Rule five allows the parties, at any point in the proceedings and where the requirements of article 777 are met, to ask to continue by that route if agreement is finally reached, and rule seven authorises suspending the case by mutual consent to go to mediation. Starting a contested case does not prevent ending in a settlement, and often the interim measures order is what unblocks the negotiation.
How we run the case, step by step
- 1
A financial and family snapshot of the marriage
We gather the marriage entry certificate, the children's birth entries, tax returns, payslips, bank certificates, title deeds and land registry certificates, which is what rule one of article 770 requires where financial measures are sought.
- 2
Deciding whether to seek measures before or with the claim
If the situation is untenable we use article 771 and force a hearing within ten days and an order within three. If it can wait, we seek them in the claim under article 773 and avoid the risk of their lapsing because no claim is filed within thirty days.
- 3
Claim with a reasoned proposal of measures
We draft the article 86 divorce claim, evidencing the three months of article 81 and attaching the reasoned proposal of measures: custody, contact arrangements, maintenance, use of the home and, where appropriate, the article 97 compensatory allowance.
- 4
Defence, counterclaim and preparation for the hearing
We analyse the defence and, if your spouse counterclaims, we have ten days to answer it. We prepare your evidence and the financial documents, knowing that personal attendance is compulsory and that unjustified absence has evidential consequences.
- 5
Evidence, hearing the children and expert reports
Evidence that does not fit in the hearing is taken within a maximum of thirty days. Children are heard in all cases from the age of twelve and may be heard earlier, and article 92 allows expert opinions on the suitability of the custody arrangement.
- 6
Judgment, financial effects and enforcement
The judgment sets the article 91 measures and, under article 95, produces the dissolution of the matrimonial property regime as regards the couple's assets. From there the divorce is registered and, if your spouse does not comply, the measures are enforced.
The evidence that decides the case
- The marriage entry certificate and the children's birth entries from the Registro Civil, which rule one of article 770 requires to be filed with the claim.
- Both spouses' tax returns and payslips for the most recent years, because child maintenance is measured against real income and not against the income each of them asserts orally.
- Bank certificates for every account, including those your spouse claims are empty or exclusively theirs.
- Title deeds and land registry certificates for the family home and any other property, together with the mortgage amortisation schedule.
- The real care calendar: work schedules, school, activities and who drops off and collects the children each day, documented rather than narrated.
- The expert opinion on the suitability of the custody arrangement that article 92 allows to be obtained, and the hearing of a child who has already turned twelve.
What closes the door
- Filing the claim without a reasoned proposal of measures. Article 81 requires it, and without it the court decides on the house, the children and the money using the only articulated proposal before it, which will be your spouse's.
- Obtaining prior interim measures and then letting the month slip. The effects and measures of article 771 survive only if the divorce claim is filed within thirty days of their adoption.
- Not attending the hearing, or sending only the lawyer. Rule three of article 770 allows the facts alleged by the party present on final financial measures to be treated as admitted.
- Leaving the family home or withdrawing money from joint accounts to get ahead. Those facts document themselves and later have to be explained to the person deciding use of the house and maintenance.
- Relying on verbal agreements about the children or the mortgage. What is not in the measures order or the judgment cannot be enforced, and breach is argued as if nothing had ever been agreed.
The law that applies
- Art. 86 CC. Orders divorce to be granted judicially, whatever the form in which the marriage was celebrated, at the request of one spouse alone, of both, or of one with the other's consent, where the requirements and circumstances of article 81 are met. BOE-A-1889-4763
- Art. 81 CC. Allows one spouse alone to apply once three months have passed since the marriage was celebrated, with no such wait where risk to life, physical integrity, liberty, moral integrity or sexual freedom and indemnity is shown, and requires a reasoned proposal of measures to be attached. BOE-A-1889-4763
- Art. 91 CC. Absent agreement between the spouses, or where it is not approved, the court determines in the judgment the measures on the children, the family home, pets, the burdens of the marriage, the liquidation of the property regime and the guarantees, and those measures may be modified if circumstances change substantially. BOE-A-1889-4763
- Art. 97 CC. Grants the spouse for whom the divorce produces a financial imbalance amounting to a worsening of their previous position in the marriage a right to compensation, temporary, indefinite or as a single payment, the amount of which is set by reference to nine circumstances, among them past and future dedication to the family and the duration of the marriage. BOE-A-1889-4763
- Art. 770 LEC. Sets the rules of contested divorce: the financial documents filed with the claim, counterclaims only in four situations, compulsory personal attendance of the parties under warning, evidence taken outside the hearing within a maximum of thirty days, hearing children from the age of twelve, and the option of suspending the case for mediation. BOE-A-2000-323
- Art. 771 LEC. Governs interim measures prior to the claim: they are applied for before the court of the applicant's domicile, a hearing follows within ten days, the court may decide urgent matters immediately, it rules by order within three days with no appeal, and the measures survive only if the claim is filed within the following thirty days. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Can I divorce if my wife refuses to sign the agreement?
Yes. Article 86 of the Código Civil allows divorce to be granted at the request of one spouse alone where the requirements of article 81 are met, that is, once three months have passed since the marriage was celebrated. Her signature is needed for an agreement, not for the divorce. What will be decided without it are the measures: custody, use of the home, maintenance and, where relevant, the compensatory allowance.
Must I separate first or prove why the marriage broke down?
No. Article 81 requires neither prior separation nor any grounds: three months from the celebration of the marriage is enough. Infidelity, falling out of love or the argument that caused the breakdown are not part of the subject matter of the case and do not improve your position. What does matter, and greatly, is conduct relevant to the children and each party's real financial situation.
When is it decided who stays in the house with the children?
Long before judgment. Under article 771 a hearing can be requested that takes place within the following ten days, with an order issued within three days and no appeal. Under article 773 those measures are sought with the claim. In both cases the court rules provisionally on custody, use of the home and contribution to the family's expenses, and that order shapes the rest of the case.
Can I ask for shared custody if she does not want it?
Yes. Paragraph eight of article 92 of the Código Civil allows it to be granted exceptionally at the request of one party alone, with a report from the public prosecutor, on the basis that only in that way is the child's best interest properly protected. The court will assess each parent's relationship with the children, hear children with sufficient maturity and may obtain expert opinions on the suitability of the arrangement.
What happens if my spouse attends no hearing and files no defence?
The case goes on. Rule three of article 770 warns that unjustified absence may lead to the facts alleged by the party who does attend being treated as admitted for their claims on final financial measures, and the same consequence is provided for at the interim measures hearing. Their absence damages their position, not yours.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.