Preliminary, interim and urgent measures in a divorce: putting the situation in order without waiting for judgment

Three moments, three kinds of measure

In a divorce there are three classes of measure which are easily confused, because they share their content but not their timing or their duration:

• Preliminary measures (medidas previas, also called provisionalísimas): applied for before the divorce petition, where the situation cannot wait for the petition to be ready (art. 104 CC and art. 771 LEC). They last only if the petition is filed within the following thirty days.
• Medidas provisionales, interim measures: applied for with the petition or with the defence, and governing the position for as long as the proceedings last, until the judgment replaces them (arts. 102 and 103 CC and art. 773 LEC).
• Final measures: those fixed by the judgment (art. 91 CC and art. 774 LEC). We deal with them in the guide to final orders and their variation.

To these are added the urgent measures of art. 158 CC in favour of the children, which may be applied for at any time and in any proceedings, and protective measures over assets where there is a risk of their disappearing.

What the petition itself brings about

From the moment the divorce petition is admitted, and without anyone having to ask, the law produces certain automatic effects (art. 102 CC): the spouses may live apart and the presumption that they live together ceases; any consents and powers of attorney they had given one another are revoked; and, save agreement to the contrary, neither can any longer bind the other spouse’s separate property in the exercise of household authority. It is worth having that admission noted at the Registro de la Propiedad (the Land Registry) and the Registro Civil (the Civil Registry) where there are properties or third parties involved.

What can be applied for as an interim measure

Failing agreement between the spouses — which the court will approve if it does not harm the children — art. 103 CC allows an application for:

• Whom the children are to live with and the régimen de estancias, the timetable of stays with the other parent; exceptionally, care by grandparents or other relatives.
• Which spouse remains in the family home and what household contents the one who leaves may take.
• The contribution to the expenses of the marriage, including litis expensas: one spouse advancing to the other the costs of the litigation where only one of them has the means.
• The guarantees and safeguards to see that that contribution is complied with.
• How the common assets are administered and disposed of while the case runs, and how any separate property charged with the expenses of the marriage by capitulaciones matrimoniales (a marriage contract made before a notary) is to be administered. This is the measure that protects the couple’s property where there is a risk of one of them emptying accounts or selling assets.

How they proceed

Preliminary measures (art. 771 LEC)

They are applied for in writing before the court for the applicant’s home, without the need for a lawyer or a procurador (the court agent who files documents at court) for the initial application, though both are needed for everything after it. The court summons the spouses, and the Ministerio Fiscal (the public prosecutor) where there are minor children, to a hearing within the following ten days; if the matter is urgent it may order immediately, in the very order admitting the application, the effects of art. 102 CC and whatever is appropriate as to the children and the home. It decides by way of an order, against which there is no appeal. If the divorce petition is not filed within thirty days, the measures cease to have effect (art. 104 CC). In practice the courts require the prior attempt at an out-of-court solution under Ley Orgánica 1/2025 to be shown here as well, except for the urgent measures of art. 158 CC; it is worth having it done before going to court.

Interim measures applied for with the petition (art. 773 LEC)

They are applied for in the petition itself or in the defence. The court calls a hearing, which proceeds in the same way, and decides by order; the measures govern until judgment, which replaces them with the final ones. Where there were already preliminary measures, the petition asks for them to be confirmed or varied (art. 772 LEC).

Urgent measures under art. 158 CC

Where a child is at risk, the court may order at any time and in any proceedings whatever measures are needed to protect them: a prohibition on leaving the country or on a passport being issued, changes in who cares for the child, a non-molestation order, measures to secure maintenance. They proceed as a matter of urgency and fall outside the requirement of an attempt at an out-of-court solution.

Protective measures over the couple’s assets

Where there are indications that one spouse is emptying accounts, transferring assets or loading the common estate with debt, the court is asked to order joint administration, a prohibition on disposing, an entry at the Land Registry or a preventive attachment. And where the management is fraudulent, the law itself allows an application for the dissolution of the sociedad de gananciales on that ground (art. 1393 CC).

Common mistakes at this stage

• Moving out with nothing signed and no measures in place: the one who leaves often loses their position over the home and watches a state of affairs with the children settle in that is hard to change afterwards.
• Stopping payment of the mortgage or the household expenses of your own accord: the debt is still a common one and the default rebounds on both of you.
• Emptying the joint account as a precaution: the court will take it into account both in fixing measures and on the winding up.
• Applying for preliminary measures without the petition ready: if it is not filed within thirty days they lapse and the position has been lost.
• Taking the children to another town without agreement or the authorisation of the court: it may amount to abduction and it marks the rest of the proceedings.

Deadlines worth not letting slip

• Ten days at most between the application for preliminary measures and the hearing before the court (art. 771.2 LEC).
• Thirty days from the making of preliminary measures in which to file the divorce petition; otherwise they come to an end (art. 104 CC).
• Interim measures govern until judgment, which replaces them; the order making them cannot be appealed, but a variation can be applied for if circumstances change.

Where we work

Our office is in Villanueva de la Cañada, and we act regularly in Brunete, Villanueva del Pardillo, Valdemorillo, Quijorna, Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón and the rest of western Madrid. Divorces are heard by the court of first instance for the last matrimonial home; where the spouses already live in different judicial districts, the party bringing the claim may choose between that last home and the respondent’s residence (art. 769 LEC). Villanueva de la Cañada, Brunete, Quijorna and Boadilla del Monte belong to the judicial district of Móstoles; Valdemorillo and Villanueva del Pardillo to that of San Lorenzo de El Escorial; Majadahonda and Las Rozas to that of Majadahonda; Pozuelo de Alarcón has its own. This guide forms part of our divorce practice.