Notarial procedure for divorce by mutual consent in Colombia

The notarial process of divorce by mutual consent is the most practical and simple way to terminate the marriage contract. This procedure is carried out effectively from an act of mutual agreement between the couple, regardless of whether they have assets, debts or children within the marital partnership.

Divorce by notary is regulated through Decree 4436 of November 28, 2005, which regulates the appropriate notary fees to be followed based on the reading of Article 34 of Law 962 of 2005.

When does notarized divorce apply?

This modality of termination of marriage and marital partnership is applied when the parties reach an agreement and want the procedure to be efficient, implementing the shortest possible time. This act requires a lawyer, who will meet with the parties to reach an agreement or arrangement, which will later be legalized before a notary by means of a public deed.

Is a lawyer necessary to carry out this procedure?

Yes, the procedure must necessarily be carried out through a lawyer. Article 34 of Law 962 of 2005 states:

“The cessation of the civil effects of any religious marriage and the divorce of the civil marriage may be agreed before a notary by mutual agreement of the spouses, through a lawyer, by means of a public deed, without prejudice to the competence assigned to the judges by law.

The divorce and the cessation of civil effects before a notary shall produce the same effects as those decreed judicially.”

What are the requirements?

General requirements:

1. Birth certificate of the couple seeking a divorce.
2. Copy of marriage registration.
3. Power of attorney that authorizes the lawyer who will carry out the divorce proceeding before the Notary.
4. Divorce petition document. Written document in which the will to divorce is manifested.
5. Divorce agreement that must contain:

• Joint decision to carry out the civil marriage divorce proceedings before a notary public.
• Maintenance obligations between spouses if applicable.
• The declaration of the spouse as to whether or not he/she is pregnant.

6. Photocopies of the citizenship card of the interested parties.

Requirements when there are children:

1. Civil registry of birth of the children.
2. In the case of minor children, the visitation regime, the custody of the child and the feeding of the child must be agreed upon. This concept must be approved by the family ombudsman.
3. Agreement as to who will be the parent responsible for the custody and care of the children.
4. Agreement of the maintenance quota, which by law must include food, education, recreation, health and payment of housing, rent and utilities.
5. The visitation regime that the parent who does not live with the minor children will have.
6. The increase in the food quota each year, which shall not be less than the CPI decreed by the national government annually.

Requirements if there are assets:

1. Liquidation of the assets, prepared by an expert.
2. Aagreement of the spouses where they express how they will divide the assets. It is important that there is an agreement, otherwise, if there is no agreement, the judge will be the one to decide.

Step by step notarial procedure for divorce by mutual consent

Notarial divorce proceedings without children or assets:

1. An attorney is required, who once the respective power of attorney is granted, will proceed to stipulate together with the parties the divorce agreement, and additionally the request for marital dissolution before the notary office selected for such purpose.
2. It must be validated that all the requirements for divorce by mutual consent are met.
3. Once all the requirements of the law are met, they must be filed before a notary public.
4. The notary will validate the fulfillment of all the requirements, and in the event that they are successful, the notary will proceed with the formalization of the cessation of the civil effects of the marriage by means of a public deed.
5. The notary’s office will proceed to send official notices to the notary’s or registry offices where the marriage registry and the civil records of the divorced parties are kept.

Additional steps in the case of minor children:

1. The attorney will proceed to add to the agreement reached between the couple, the arrangements regarding custody and visitation of the minor children.
2. The notary’s office will be responsible for sending the agreement concerning the children to the nearest family defender or alternatively to the Instituto de Bienestar Familiar (Family Welfare Institute).

*In the latter case, the process will take an additional 30 working days, since this is the time stipulated by law to approve the agreement regarding custody, child support and visitation. In the event that the family defender does not approve the registered agreement concerning the children, the attorney will have to answer the requested corrections, causing an additional delay. The reason for this additional process is to ensure the rights of minors, which are regulated by the code of childhood and adolescence.

Additional steps if material assets or debts are involved:

When the couple has assets or debts, an additional process of dissolution and liquidation of the marital partnership must be previously carried out at the Notary’s office. Such liquidation must record any acquisition of assets and liabilities, i.e., property and debts, from their union until the date on which the divorce is formalized.

Liquidation of the marital partnership

According to the Article 180 of the Civil CodeIn the case of the divorce, together with the rules of Title XXII of Book 4 of the same and together with Law 28 of 1932, it is stated that as a result of the marital bond a marital property partnership is formed, which by the mere fact of the divorce, would be dissolved and in a state of liquidation.

Likewise, according to Article 25, paragraph 5 of Law 1 of 1976, the marital partnership may also be liquidated by mutual agreement, either prior to, simultaneously or after the request of the notarial process of cessation of civil effects.

Therefore, the divorce or cessation of civil effects agreement signed by the spouses before a notary public must contain, in addition to the requirements mentioned above, the following: first, a clear and express statement on the existence or not of marital contracts; it must also contain a detailed list of the assets that make up the corporate assets as well as a description of the liabilities, and finally, the manner in which the assets will be distributed between the spouses.

However, in the event that there are no social goods, neither assets nor liabilities, the liquidation of the conjugal partnership will be made in zeros ($0.00).

By virtue of the foregoing, the notary fees that will be caused by the liquidation of the marital partnership in this condition, that is to say, in the case of liquidation of marital partnership that is at zero, the notary fees applicable to acts without amount will be caused. On the other hand, when there are assets involved, the notary fees will be calculated based on the liquid assets, which corresponds to the value resulting from the assets minus the liabilities (3 x 1000 rate, according to Resolution 11621/2010 of the Superintendence of Notaries and Registry).

It is pertinent to clarify that if the liquidation of the marital partnership is chosen simultaneously with the notarial process of divorce or cessation of civil effects, the attorney appointed by the spouses must have the express authorization of the spouses to carry out the execution of such liquidation, otherwise, the marital liquidation must be executed personally by the spouses who requested the divorce.

Duration Mutual Agreement Divorce

The term of the notarial process of divorce by mutual consent varies depending on whether or not there are children and ranges from 3 to 30 days.

• When there are minor children during the marriage: the term limit will be 30 days, since the notary must notify the family defender about the procedure to be carried out and he/she will have a term of 15 days to issue his/her opinion.
• On the other hand, when there are no children in the marriage, the deadline for the procedure will be ten (10) days.

Notary fees for divorce by mutual agreement

The cost of the procedure is not exact as the expenses and fees vary according to different factors. However, La República published some divorce cases and the costs they could have in Colombia:

1. There are no children, nor assets: one must go to the notary’s office where two acts must be paid, the first one is the divorce, in which the separation is written, and the second one is the act of liquidation of the conjugal society. Each act is worth approximately 200,000 to 300,000 pesos, plus the spouses’ attorney’s fees.
2. There are no assets, but there are children: In this case, a process for alimony must be carried out, which can cost around five minimum wages. In this procedure, the child support obligations are stipulated and a quota is set for the absent parent, according to the salary he/she is earning at that moment. The attorney’s fees are added to this process, plus the notarial acts mentioned in the first case.
3. There are assets: For this situation, the couple must pay at the Notary’s office the notary fees consisting of a percentage of the assets declared in the liquidation, together with the act of divorce. In turn, the lawyer may charge up to five minimum legal salaries in force, but in the case of marital partnerships with assets exceeding 500 million pesos, he/she may charge 10 SMMLV..
4. There are assets and children: Generally, this process is prolonged due to the liquidation of the marital property and the fight for custody of the children. Lawyers’ fees also increase in proportion to the time the service is rendered.

Does divorce by notarial means have the same effects as divorce by a judge?

The divorce before a notary public, as well as the cessation of civil effects before a notary public, will produce the same effects as the one decreed by judicial means. It is the best option to achieve an efficient divorce, through a quick process that saves time and costs for all parties involved.