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International Divorce Lawyers

In Spain there are a large number of international family proceedings due to the number of foreigners who are related in one way or another with our country as well as the large number of Spaniards who develop their lives or activities abroad.

Within these international family proceedings, the most frequent are international divorce proceedings, which usually involve the regulation of relations with minors and their protection, maintenance, pensions, if applicable, and property relations between the spouses and their dissolution.

All these issues require the application of international law, which makes them very complex and makes it advisable to turn to a specialist international divorce law firm.

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International Divorces and separations

International separation and divorce in Spain

Matrimonial crises have to be solved using international law and the specific rules contained therein. Therefore, when the family has problems and people wish to file for divorce, it is necessary to seek a professional firm specialised in this area.

International divorce is regulated from the perspective of international jurisdiction by Regulation (EU) 2019/1111 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility and international abduction. It applies to matrimonial property disputes as a whole and therefore includes the rules applicable to annulment, separation and civil divorce.

This text unifies Community procedural law in the field of;

  • Divorce, separation and marriage
  • Minors, including the attribution, exercise, delegation, restriction or termination of parental responsibility.

Matters such as guardianship, support curatorship, foster care, the appointment of a person or body to take care of the person and property of the child, are included within the material scope of this Regulation.

A reading of Art. 6 indicates that the Regulation applies when a spouse, either of the spouses, has his/her habitual residence in the territory of a Member State or is a national of a Member State. For this reason, the Regulation will apply to EU nationals, irrespective of their domicile, and to non-EU nationals when they reside in the EU.

From the perspective of applicable law, Regulation (EU) 1259/2010 of 20 December 2010 on enhanced cooperation in the area of the law applicable to divorce and legal separation containing conflict-of-law rules applies.

International Divorces and separations

Legal aspects of international divorce

In civil proceedings for dissolution of marriage, when there is a foreign element, before bringing the claim before the Spanish courts, law firms have to check whether the courts in Spain have jurisdiction to hear the claim.

Regulation 2019/1111 applies to both EU residents and nationals. The Spanish Supreme Court has opted for a real criterion on the concept of residence in case of doubt and it is the one where the individual’s habitual interests are located.

The jurisdiction of the judge, linked to the proceedings, takes as its main reference point the habitual residence of the defendant and even of the plaintiff, provided that it is supplemented by a period of residence, as well as the common nationality of both parties. This residence must be established at the time of filing the lawsuit.

In accordance with the above, the Spanish courts have jurisdiction, alternatively, when you are in Spain:

The habitual residence of the spouses

The last place of habitual residence of the spouses, provided that one of them still resides there

The defendant's habitual residence.

The habitual residence of one of the spouses, in the case of a joint claim.

The claimant's habitual residence, if he/she has resided there for at least one year immediately prior to the claim

The claimant's habitual residence, if he/she has resided there for at least 6 months immediately preceding the filing of the claim and is a Spanish national.

The Spanish court also has jurisdiction when both spouses are Spanish

With regard to the applicable law, one of the main new features introduced by Regulation 1259/2010 is the possibility of the parties choosing the applicable law. In the absence of choice by the parties, the law provided for in Article 8 of the Regulation applies.

 

International Divorces and separations

The law applicable to separation and divorce

It is important to know the applicable law in order to know, for example, the grounds for divorce. In Spanish law, divorce do not need grounds to be processed and can be initiated after three months of the marriage. But in other legal systems a cause must be invoked. It may also be that the period fixed for initiating a divorce is different, or even that a period of separation is required beforehand.

The law applicable to divorce is set out in Regulation 1259/2010. The parties may choose the law of their divorce. If they do not do so, the Regulation indicates which law it is.

In matters of international divorce, other problems may arise, such as divorce proceedings having been filed in two different countries, in which case lis pendens may arise.

All these peculiarities mean that divorces with a foreign element have to be advised by lawyers specialised in this area, as the problems that arise in these proceedings are many and complex. At Winkels Abogados we have specialised and qualified professionals to deal with all these issues.

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Frequently asked questions regarding international separations and divorces.

A divorce is international when it has one or more relevant foreign elements, such as the different nationality of the parties or the habitual residence. The place of celebration is not relevant. The divorce of two Spaniards who have married abroad if they have their habitually resident in Spain will not be international.
In many cases, the marriage starts out completely national but over time one or both spouses change residence and the divorce, even if both are Spanish, will become international and will require the application of the special rules for this type of divorce.

It is common for judges in different countries to have jurisdiction to hear an international divorce. Jurisdiction in this matter is neither exclusive nor excluding and may be exercised, for example, by the judge of the defendant’s domicile or the judge of the plaintiff’s domicile, subject to certain conditions.

Where proceedings are brought in more than one State and the courts have jurisdiction, the procedural tool available to avoid multiple judgments being rendered is the plea of lis pendens. When there is more than one pending lawsuit, the first one in time has priority.

International divorce poses specific difficulties that are not present in domestic divorces. This makes it necessary that the law firm handling the divorce needs to be familiar with both family law and private international law. It is therefore necessary for the lawyer to be a professional in both areas.
Winkels abogados is a firm of specialists in these matters and we have among our collaborators true specialists in family law and international law, so that the difficulties that arise in this specific branch of law will be dealt with by fully specialised professionals, which is necessary in such complex matters.

There are many challenges in a successful international divorce. It is very important that all actions taken in one country can be effective in other countries. For example, if two parties divorce in Spain and one is a Spanish national and the other a foreign national, the judgment issued in Spain must also be effective in the place of nationality of the other spouse, where the marriage is usually also registered.

Another very important challenge is to ensure that there is no more than one judgment regulating an international family matter, because if there are, consistency and legal certainty are endangered.

Divorce with a foreign element cannot be filed in all countries. It is necessary that certain family, child and spousal ties exist. Therefore, it is necessary to engage a law firm from a country that has international jurisdiction for divorce and children, e.g. because it is the place of domicile of the parties.

On other occasions it is necessary to recognise the divorce decree in a country other than the one in which it was issued and therefore the professional office to be engaged will be the one in the place where the decree is to take effect.

The best way to protect children in an international divorce case is to go as soon as possible to the courts that have jurisdiction to apply for the corresponding measures, which are often urgent measures.

International jurisdiction over children is usually linked to their domicile, although it is also possible for other judges to be in charge of the children’s measures, as long as they have a connection with the children and the parents agree.

It is common to request the closure of borders or similar measures to prevent child abduction.

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