The Right of Separation of the Partner – Legal Concepts

The right of separation it’s a protection mechanism of the partners of a capital company to assert, in certain circumstances, their Right to terminate your relationship as a partner of the company.

In order to recognize this right to voluntary abandonment, certain circumstances must occur established by law or provided for in the bylaws.

right of separation The right of separation is a legal mechanism that protects the partners of a capital company to, in certain circumstances, force the termination of their relationship as a partner.

Right of separation of the partner in capital companies

Capital companies are those in which the partners pool money and other goods to carry out a commercial activity., with the aim of making a profit. This group includes public limited companies, limited liability companies and partnerships limited by shares.

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The Capital Companies Law regulates the operation of these companies, and the separation right is regulated between articles 346 and 349.

Article 346 establishes that the partners will have the right of separation when any of the following causes occurs:

1. Separation of the partner due to substantial modification or substitution of the purpose of the company

It is the case of a society that changes the activity to which it is dedicated. Partners who do not agree with the new situation have the right to withdraw.

The separation of a partner will be legitimate when certain requirements are met:

Not having signed the agreements

Changes in a capital company are decided by agreements between the partners. Only those partners who do not sign those agreements that determine the causes of the separation will have the right of separation..

Publication or formal communication of changes

The new agreements are published in the Official Gazette of the Mercantile Registry. In some companies, this publication is replaced by a written communication to each partner who has not voted in favor of the agreement. This publication or communication legitimizes the right of separation of the partner.


The member who has not voted for the agreement has a 30-day period to request separation. The days are computed from the publication or receipt of the communication of the new agreement.

2. Failure to distribute dividends

In a capital company the purpose is to obtain dividends. When delivery problems ariseDissatisfied partners have the right to withdraw.

Some considerations in the distribution of dividends that are linked to the right of separation of the partner:

Minimum required distribution of dividends

Article 348 bis of the Capital Companies Law provides that the separation right does not arise if at least 25% of the profits for the period have been distributed during the last five years.

record in the minutes

Members must record their disagreement in the minutes. with the distribution of dividends. After the fifth year of these records, they will have the right to separation.


There are exceptions to these situations.: companies in bankruptcy or in the negotiation stage prior to the bankruptcy, Sports Public Limited Companies, listed companies that are in negotiation systems or companies that have reached refinancing agreements.

3. Extension of the company

It is common for these capital companies establish an expiration date, upon which the company disappears. If the partners decide to extend the partnership, those who disagree will have the right to separate.

4. Reactivation of society

This is the case of a dissolved society that is reactivated. Partners who do not opt ​​for this reactivation will leave the company.

5. Obligation to perform ancillary services

Another cause for separation of a partner is modification of the conditions of social benefits.

6. Conditions provided in the statutes

In addition to these reasons provided by law, each company is governed by its own statutes.

Situations of separation of partners can be foreseen in the statutes. In these cases, the possible causes of the separation are defined, as well as the way to accredit them and proceed to make the separation effective, and the term to finalize the separation.

What happens to the social contributions of the partner who separates from the company?

When a partner who forms part of a company through company shares separates, he is entitled to receive a refund. To this end, the fair value of these shares is established.

How do you proceed to value the shares for the purpose of this reimbursement?

An agreement is attempted between the partners about the amount of the partner’s reimbursement that is separated based on their company shares.

If no agreement is reached, an auditor external to the company is consulted, which will be designated by the Mercantile Registry at the request of the company or any of the partners. The auditor has two months to issue his report.

Based on the agreement of the partners or the auditor’s report, the separated partner will receive the agreed amount.

How do you proceed for the separation of a partner in other types of companies?

There are other social structures for which specific conditions of separation of partners are defined.

In addition to capital companies, the most frequent are:

Collective societies

The partnership is characterized in that all partners are jointly and severally liable for the company. They are governed by the Commercial Code, which in its article 218 establishes the possibility of separation of the partner by his sole will. Likewise, it provides for exclusion due to breach of commitments and insolvency.

The procedure to make the separation effective is established in the bylaws of each company.

Cooperative Society

The purpose of a cooperative society is to satisfy the individual and collective needs of the members.. To this end, productive activities, distribution and consumption of goods and services are carried out.

Law 27/1999, which regulates this type of company, recognizes the right of a partner to voluntarily separate from the company. In addition, the law recognizes the right of separation of the partner who does not agree with modifications in the social obligations, in the object of the cooperative or in the Statutes.

Belonging to a company implies assuming legal and statutory commitments. When a partner considers that he should separate from the organization, he has to take into account the regulatory framework.

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