Recognition and enforcement of foreign judgments

In proceedings with a foreign element, it is very common for a judgment handed down by a judge in one country to be effective in another. The recognition and enforcement of foreign judgments is fundamental from the perspective of judicial protection, as it avoids having to file a new lawsuit in each of the countries where the judgment is to have effect and, furthermore, it ensures that the rights of individuals are unified in the different countries with which they are linked and request recognition of their judgment.

Foreign judgments can have effects in Spain

A judgement from any country of the European Union or any other country concerning divorce, minors, maintenance, inheritance or any other family matter can have effect in Spain if a party interested in the production of these effects so requests.

For example, a divorce that has been pronounced abroad can be registered in the Spanish civil registry when one (or both) of the parties is Spanish. If a succession judgment is issued in Italy distributing the assets of a deceased Italian and part of those assets are in Spain, the judgment will have to produce effects on Spanish territory. If a Canadian maintenance judgment sentences a resident in Spain to pay maintenance and he/she does not pay it, a recognition and enforcement of the judgment will have to be requested in Spain. The same applies to all judgments handed down by foreign courts in family matters, when the effects of such judgments must also be produced in our country.

The effects that are usually sought are the declaratory, constitutive, executive, res judicata and registry effects. Generally speaking, in order for a judgment to produce in Spain the effects it has in the country where it was issued, our authorities have to “review” the judgment in one way or another and check whether it meets the necessary requirements to be recognised in Spain.

The applicable rule for the recognition and/or enforcement of foreign judgments depends on their origin and the subject matter of the judgment. Sometimes, the date of commencement of the proceedings abroad is also relevant.

Judgments originating in the European Union

If the judgment comes from the European Union and is on a matter covered by the Brussels Regulations, its recognition will be automatic and its enforcement, although there are peculiarities in the different Regulations, will be enforceable in the other member states.

The applicable Regulations are 2201/2003 for judgments on marriage annulment, separation, divorce and minors, 4/2009 for maintenance judgments, 2016/1103 for matrimonial property regimes, Regulation 2016/1104 for unmarried couples and Regulation 650/2012 for inheritance.

Judgments coming from countries with which Spain has agreements

Spain is party to some bilateral conventions on the recognition of judgments in family matters, such as the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in matters of parental responsibility and measures for the protection of children; the Luxembourg Convention of 20 May 1980 on the recognition and enforcement of decisions concerning the custody of children and the restoration of such custody; and the Hague Protocol of 23 November 2007 on the international recovery of maintenance for children and other family members.

Spain has also signed bilateral agreements on the recognition and enforcement of judgments with Switzerland, Colombia, Morocco, Tunisia, Mauritania, China and Russia, among others.

As in the exequatur procedure, the judge will examine the conditions set out in the bilateral agreements to see if the judgment complies with them and can produce effects in Spain.

Judgments that come from non-EU countries with which Spain does not have an agreement.

In judgments that do not come from the European Union, the homologation procedure is called exequatur and the judge or competent authority will check that the conditions required by law are met so that the judgment can produce effects in our country.

In this case, the conditions that the judgments must meet can be found in Law 29/2015 on international legal cooperation in civil matters. And they are: finality, respect for Spanish public order, respect for effective judicial protection (not having been issued in unconscious default of the defendant), jurisdiction of the judge of origin, irreconcilability, i.e., there must not be a Spanish judgment or a procedure opened in Spain initiated previously.

The law also indicates the documentation that must be provided and the formalities that must be complied with.

Our legal system also allows direct access to the register of foreign judgments, subject to verification of compliance with the conditions required by law.

At Winkels Abogados we have lawyers who specialise in the recognition and enforcement of foreign judgments and who are qualified to deal with this complex legislative landscape.