A study conducted by professors Juan Bataller Grau and Carlos Vidal-Meliá, members of the University Institute of Patrimonial Law – Patrimonium at the Universitat de València, concludes that the divorce insurance can be legally taken out in Spain as a personal insurance and sums insured. Work develops the legal bases required to design a policy that pays a previously agreed amount when there is a divorce.
The article, titled «El seguro de divorcio como seguro de sumas: una propuesta desde el Derecho español», (“Divorce Insurance as Sums Insured: the Spanish Law’s Proposal”) has been published in the 10th number of the Journal of the Law of Financial System: markets, operators, and agreements. Its authors are Juan Bataller, professor of Mercantile Law and head of Patrimonium, and Carlos Meliá, professor of Financial and Actuarial Economics at the Universitat de València.
The work arises out from an economic reality: divorce can generate legal costs, costs of moving, income losses, and new family compromises. These needs may cause problems of liquidity, debt, or even forced sale of goods. The divorce insurance is addressed as a possible tool of protection against these economic consequences, not as a mechanism that ensures marriage continuity.
According to the data available in the article, there were 76,685 divorces in Spain in 2023. The average length of marriages at the moment of divorce reached 16,4 years, and 81,6 % of the procedures was solved by mutual agreement.
An expressly unregulated agreement, but legally possible
The Spanish legal system does not regulate the divorce insurance in particular. However, the lack of regulation does not prevent from taking out the insurance. Authors hold that it would be an atypical but legal insurance agreement, subject to the general provisions of the 50/1980 Law of Insurance Agreement, and to the protection regulations of consumers and users.
The work defines divorce insurance as the agreement by which an insurance entity commits itself to pay a previously agreed amount if the insured person gets divorced, in exchange for getting paid a premium.
The main contribution of the article consists in classifying this product as a personal insurance and, in view of the insurer’s service, as insured sums. This latter classification is especially relevant because the amount the person would receive, would be set in the policy and wouldn’t depend on a further quantification of the actually suffered economic damage.
Therefore, once the divorce is proved and the coverage is checked, the insurer would pay the agreed amount. The procedure would be similar in this regard to other personal insurances that pay a predetermined amount when the covered contingency happens.
When would the insured event happen?
In the analysed modality, the covered risk would be exclusively divorce. In theory, other situations affecting marriage, such as separation, annulment, or the partner’s death, wouldn’t be included.
The insured event would occur when the divorce became fully legally effective: once the judgment or decree granting the divorce became final, or upon execution of the relevant public deed in cases of divorce before a notary. A further reconciliation wouldn’t allow the insurer to demand the return of the benefit, unless the existence of a fraud is proved.
Setting it as insured sums would also simplify liquidity. Although the entity would be required to check the validity of the agreement, the existence of divorce, and the compliance of the policy conditions, it wouldn’t be necessary to determine the exact value of the economic damage. The authors consider that this lower level of complexity should result in shorter payment periods and a stricter application of late-payment interest when the insurer unjustifiably delays payment of the benefit.
Insured people, beneficiaries and group insurance
The insurance could be taken out on one’s own behalf, where the policyholder and the insured are the same person, or on behalf of another person. Under certain arrangements, both spouses could be named as insured persons. This possibility is less problematic in a fixed-sum insurance policy than in legal expenses insurance, where the same insurer could not simultaneously defend opposing interests.
The article is more reserved regarding the beneficiary role. The authors consider that the autonomous right recognised to the beneficiary in the life insurance in case of death shouldn’t be automatically transferred to divorce insurance. However, the policy could include an assignment of the right to receive payment in favour of a third party.
Besides, the product may be developed through group insurances, for example, through a policy taken out by a company for its workers. Group insurance could reduce adverse selection, that is, the tendency for insurance to be taken out mainly by people who already consider themselves to be at a high risk of divorce.
How to prevent fraud and moral risk
One of the main objections to the insurance is that the insured event depends on the will of the couple, at least partly. However, the study distinguishes between the intervention of the divorcing will and the fraudulent provocation of the accident.
The authors hold that divorce preserves a random element, which is enough to be insured. The fact that one of the spouses starts the procedure doesn’t mean either that it is fully under its control or that taking out the insurance doesn’t cause uncertainty.
A different matter is that partners cause or simulate divorce with the aim to get paid by the insurance. In this case, the general rule of the Insurance Agreement Law would be applicable. It frees the insurer when the insured event is caused in bad faith.
The work suggests introducing a waiting period of four years as the main preventive measure. During this period, the policy would still be in force, but a divorce would not yet give rise to the right to receive the insurance benefit. This deadline would make it difficult for the insurance to be taken out to cover an agreed breakup or to carry out a previously planned fraud.
The next step: to integrate legal and actuarial design
The article provides the legal frame to build a future policy, but it doesn’t present a finished commercial product nor it calculates its premium. Pricing would demand to include factors able to explain the divorce risk, such as the age, the marriage length, the previous divorces, the economic situation, the educational differences, or determined elements related to life cycle.
The authors warn that the lack of consistent data bases that have all these factors makes it difficult its direct application and it may be necessary to dip into actuarial models and simulation methods.
The development of a divorce insurance would require, therefore, to combine solid actuarial technic bases with a clear agreement delimitation, effective mechanisms against fraud, and a proper protection for the insured people. It would also be required to overcome the possible social reject that arises out from interpreting the agreement as a way to anticipate marriage failure.
The study concludes that this product may be included within Spanish Law and that its setting as personal insurance and insured sums offers a coherent legal basis. Its potential implementation will now depend on whether its actuarial, contractual and commercial design can turn it into an effective tool for providing financial protection to families.
More information
Bataller Grau, Juan, i Vidal-Meliá, Carlos (2025). «L’assegurança de divorci com a assegurança de sumes: una proposta des del Dret espanyol». Revista de Derecho del Sistema Financiero: mercados, operadores y contratos, número 10, secció Estudis.
See the article in the Journal of the Law of Financial System
