International parentage proceedings
International parentage proceedings are not regulated in any Community Regulation and there are no international conventions on international jurisdiction or applicable law in this area. With regard to the recognition of civil and commercial judgments, Spain has various bilateral conventions in which filiation judgments are included.
With the exception of these recognition agreements, this matter is regulated in Spain by domestic rules.
When do Spanish courts have jurisdiction to process parentage proceedings with international elements? What are the requirements?
In a parentage action with international elements (nationality of parent or child other than Spanish or resident in different countries) brought in Spain, it is necessary to determine whether the Spanish courts have international jurisdiction to hear the matter. To do so, it is necessary to refer to Article 22 quater d) of the LOPJ. This precept indicates that the Spanish courts will have jurisdiction when:
the child or minor has his or her habitual residence in Spain at the time of the filing of the lawsuit; or
the plaintiff is Spanish or habitually resident in Spain or, in any case, at least 6 months before the filing of the lawsuit.
In Spain, unlike what happens in other countries where there are time limits, the right to the determination of filiation corresponds to the child throughout his or her life, therefore a foreigner who has his or her residence in Spain and wants to claim filiation from his or her presumed father with residence abroad, can file the lawsuit in Spain.
What is the applicable law in international parentage proceedings?
As the Spanish courts have jurisdiction in matters of filiation, the applicable law is determined by the rule of conflict contained in Article 9.4 Cc, which indicates that this law will be:
That of the habitual residence of the child at the time of the establishment of filiation;
in the absence of the habitual residence of the child, or if this law does not permit the establishment of filiation, the national law of the child at that time;
if this law does not permit the establishment of filiation or if the child lacks habitual residence and nationality, the substantive Spanish law applies.
Once the applicable law has been ascertained, it will regulate the accreditation you need, the time limit, the statute of limitations, etc.
It is important to bear in mind that if the child is habitually resident in Spain at the time of filing the parentage suit, the applicable law is Spanish law, which is very favourable to establishing biological parentage.
What happens if the parentage judgement was issued in a foreign country? How would it be recognised in Spain?
First of all, it would have to be determined whether there is a bilateral recognition agreement applicable (for example, the bilateral recognition agreement with Switzerland). In all other cases, recognition can be obtained if the foreign judgment meets the requirements established by this law (arts. 41 et seq.) in order to be recognised.
In our office, we handle both parentage claims and claims challenging parentage (which are sometimes handled at the same time). Our lawyers and expert advisors can inform you of the steps to be taken in the event that you wish to determine or contest a filiation, both internally and internationally.