Marriage with foreign elements

International Marriages and Marriages of Spanish Nationals Abroad

Marriages between individuals of different nationalities, as well as those solemnized abroad involving Spanish nationals, are completely valid. Spanish citizens have the right to marry within Spain or abroad, whether to fellow Spanish nationals or to foreign nationals.

Foreign nationals residing in Spain are likewise entitled to marry within Spanish territory. Nationality does not constitute a legal impediment to marriage. This legal framework facilitates unions between couples of diverse origins, thereby promoting cultural diversity and integration within Spanish society. Consequently, the right to marry is ensured without discrimination on the basis of nationality.

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Capacity for marriages with foreign elements?

If you are a foreigner planning to marry in Spain, it is essential to understand how your capacity to marry is determined. According to Article 9.1 of the Spanish Civil Code, your capacity is subject to the law of your country of origin.

Although your capacity is governed by your national law, in aspects such as consent, Spanish public policy plays a prominent role. This means that there are important rules you must follow in order to get married in Spain.

For example, Articles 46 and 47 of the Civil Code are mandatory. This means that you cannot get married in our country if you are currently married in your home country, even if its legislation allows it (such as in cases of polygamy).

The aforementioned 1997 ruling lists the factors that may allow a marriage to be presumed to be fraudulent, such as not maintaining a common life, not knowing personal data or life circumstances of the spouse, among others.

Since the right to marry is a fundamental right, a marriage can only be declared void if the authority making the declaration has clear and convincing evidence that the consent was vitiated.

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Legal impediments to marriage involving foreign elements

What is the “impediment of prior bond“?

Art. 46 of the Civil Code states that you cannot get married if you are already legally married. This is an important rule for everyone.

Polygamous marriages: Not valid!

Polygamous marriage (when someone has more than one partner) is null and void according to Art.

73.2 of the Civil Code. Although, in some cases, it can have effects, such as in widow’s pensions.

Registered or non-registered Partnerships: Freedom to Marry!

If you are a registered partner, you can get married whenever you want, registered or not. There are no restrictions, you decide!

Divorce abroad: What do you need?

Spanish nationals divorced abroad must validate their divorce in Spain in order to remarry.

But, if you are a foreigner, proving your capacity to marry is easier with specific documents, such as legalisation or apostille, as necessary, and a translation if required.

Age matters in marriage

The age of marriage is governed by national law. However, public policy prevents children under the age of 18 (or 16 not emancipated) from marrying, regardless of the law of their country.

Some impediments, such as kinship, are fixed rules regardless of national law or how you celebrate the marriage.

Consent to marriage

Consent and National Law

Giving your consent to marry is governed by the law of your country (art. 9.1 CC). But be careful, public policy also has its say.

Errors and Coercion: Provides!

Even if a foreign law Even if permitted by foreign law, in Spain, a marriage with errors in identity or coercion is against our public order. Here we are looking for genuine and free agreements!

Special Marriages: Beware of traps!

Arranged, false, simulated or sham marriages or marriages of convenience are contrary to Spanish public order. Here, we want authentic and sincere unions.

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Matters of form in marriage

Art. 49 of the CC allows marriage to be celebrated in our country when one of the contracting parties is Spanish and the other is a foreigner in civil form or in one of the religious forms provided for by law.

A Spaniard may also contract a marriage outside Spain, with a Spaniard or a foreigner, in the manner provided for in the law of the place of celebration.

Also, two foreigners can marry in Spain in accordance with the form prescribed for Spaniards or in compliance with that established by the personal law of either of them (art. 50 CC).

It is understood that, in addition to the form, marriages have to comply with the other requirements of capacity and consent already mentioned.

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What are the formalities required to celebrate a mixed marriage between a Spaniard and a foreigner?

If the marriage is celebrated abroad before the foreign authorities of the country of celebration and the laws of that country do not require a preliminary examination, the requirements will be checked when applying for registration in the Spanish Civil Registry.

The documents normally requested are the identification documents (ID card, passport or residence card of the contracting parties), the updated birth certificate (issued by the Civil Registry of the place of birth), the census or residence certificate (in the frequent case that one of the contracting parties resides in Spain), the sworn declaration of the civil status of the contracting parties and in the case of a widow or divorcee the corresponding accreditation, the literal certificate of marriage and certificate of definition of the previous spouse or marginal inscription of divorce.

What is a marriage of convenience?

Definition and scope when considering a marriage of convenience

The EU Council Resolution of 4 December 1997 on measures to be taken to combat fraudulent marriages defines fraudulent marriages as:

“The marriage of a national of a Member State or of a third-country national residing lawfully in a Member State with a third-country national for the sole purpose of circumventing the rules on the entry and residence of third-country nationals and obtaining, for the third-country national concerned, a residence permit or a residence authorisation in a Member State”.

Definition and scope when considering a marriage of convenience

In other words, there is no fraudulent marriage between Spaniards or with legal residents or EU nationals because there are no immigration rules to circumvent. It can only be considered fraudulent if

Marriage allows accelerated acquisition of Spanish nationality, as it is sufficient for the foreign spouse to have one year of legal, continuous residence immediately prior to the request (art. 22 Cc).

It makes it possible to obtain and maintain a residence permit in Spain, including permanent residence ( 2, 8, 9 and 9 bis RD 240/2007).

Enables family reunification (art. 1 of Royal Decree 2393/2004 of 30 December 2004).

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Hearing and verification

The DGRN Instruction of 9 January 1995 on pre-marriage proceedings when one of the contracting parties is domiciled abroad includes the hearing of each of the contracting parties separately, which allows the examiner of the proceedings to ascertain the “true matrimonial intention” of the contracting parties through the interview (in the proceedings prior to the celebration of the marriage or at the time of the registration of the marriage in the Spanish civil registry).

Factors indicating fraud

As the right to marry is a fundamental right, a declaration that the marriage is void requires the authority making the declaration to have absolute rational certainty that the consent is vitiated.

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Frequently asked questions about marriage between a Spaniard and a foreigner

That if it is validly celebrated abroad, it is valid in Spain and therefore the certificate issued by the corresponding authority can be registered in our Civil Registry (on the understanding that it complies with the rest of the requirements of capacity and consent).

There are special rules governing questions of international jurisdiction, applicable law and recognition of divorce judgments when marriages have a foreign element.

The role of the family is the same as in any other divorce.

Consent is the primary requirement for the validity of the marriage. As consent is a prerequisite for marriage as a civil status and a substantial condition for its validity, it must be governed by the national law of the contracting party at the time of the celebration of the marriage, in application of the general rule of Article 9.1 of the Civil Code.

However, in terms of capacity, there is a strong presence of Spanish public order that prevents – even if protected by the national law of the contracting party – arranged marriages or considers null and void marriages of convenience where the contracting parties marry in order to circumvent the rules on foreigners.

The form of marriage with a foreign element, including consensual marriages and consular marriages, must comply with Articles 49 and 50 of the Civil Code. These articles refer to the forms of marriage that are effective in our state, both civil and religious, when one or both of the parties are foreigners or the marriage takes place abroad. The religious forms legally provided for are canonical, evangelical and Hebraic.

They are inspired by the favor matrimonii and respect for the equality of spouses and the principle of religious freedom.

The problems that occur with marriages with a foreign element are very different from those that occur with domestic marriages. At Winkels Abogados there is a team of professionals who can help you with all the issues that arise due to the peculiarities of these marriages.

Marriage with foreign elements

International Marriages and Marriages of Spanish Nationals Abroad

Marriage with foreign elements

What is a marriage with foreign elements ?

Capacity for marriages with foreign elements?