Annulment, separation and divorce proceedings with a foreign element
In marriage annulment or separation and divorce proceedings with a foreign element, there are some specific problems that do not arise when the divorce is strictly national.
It may be that the parties, one or both of them, are foreigners, or that they are Spanish but one or both of them, or both of them, reside abroad.
Questions of jurisdiction
When these non-domestic elements are present, the first question to be resolved is whether the divorce action can be filed in Spain. Whether or not we can file here is determined in accordance with Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (known as Brussels II bis), which applies to all EU countries except Denmark.
This Regulation, known as Brussels II (bis), has recently been replaced by Regulation 2019/1111 which will apply from 1 August 2022, although there are no significant changes in the area of annulment, separation and divorce.
Where the divorce is notarial, the notary must have jurisdiction under this Regulation to perform the divorce, as must the judge.
Country in which an application for divorce may be lodged
Article 3 of the Regulation stipulates that the courts of the place where the following have jurisdiction
– the spouses’ habitual residence, or the spouses’ last habitual residence, provided that one of them still resides there, or
– the habitual residence of the respondent, or
– in the case of a joint application, the habitual residence of one of the spouses, or the habitual residence of the applicant if he or she has resided there for at least one year immediately before the application was lodged, or
– the habitual residence of the applicant if he or she has resided there for at least six months immediately before the application was brought and is a national of the Member State concerned, or
– the judge of the nationality of both spouses.
It should also be added that if there has been a previous separation, the judge who made the separation retains jurisdiction for the divorce, in addition to the judges listed in Article 3.
Residence refers to the place where the individual’s habitual interests are located and must be present at the time the action is filed. For example, the Provincial Court of Madrid declared itself incompetent to hear the divorce of a Spanish national and an American national who had resided in Madrid, but at the time of filing the lawsuit neither of them resided in Spain.
Law applicable to separation and divorce
Another important issue in divorce with a foreign element is to know the applicable law in order to know, for example, the grounds for divorce. In Spanish law, divorce is no longer grounds for divorce and can be initiated after three months of the marriage. However, in other legal systems a cause must be invoked or the period fixed for the divorce to be initiated is different, or even a prior period of separation is required.
The law applicable to divorce is laid down in Regulation 1259/2010. The parties may choose the law of their divorce and if they do not do so, the Regulation indicates which law it is.
In divorces with children and property these same issues of international jurisdiction and applicable law have to be resolved.
In matters of international divorce, other problems may arise, for example where divorce proceedings have been brought in two different countries, in which case lis pendens may arise.
All these peculiarities mean that divorce with a foreign element must be advised by lawyers who are specialists in the field, as the problems that arise in these proceedings are many and very complex. At Winkels abogados we have specialised and qualified professionals to deal with all these issues.