Act 42/2015 amended Article 775 of the Spanish Law of Civil Procedure (LEC), establishing that “where there are minor or disabled offspring involved, the Public Prosecution Service and, at any rate, the spouses may petition the court that granted the definitive measures to amend any measures agreed upon by the spouses or any adopted failing such agreement, as long as the circumstances taken into account at the moment of agreeing to or deciding on them have changed substantially.
This amendment means that jurisdiction to amend the measures rests with the court that ordered them, even if no one continues to live in that place.
The amendment at national level has been criticised as it affects procedural connecting factors and isolates itself from the doctrine of the Supreme Court and its Resolution on matters of jurisdiction of 16 December 2016. Is it reasonable to have to travel to Zaragoza to amend measures that were issued there if the parties reside in Madrid at the time of the amendment?
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Even if the amendment to this Article is a matter of national law, it may create confusion when the amendment of the measures has a foreign consideration.
Does this new regulation of Article 775 of the LEC affect the amendment of international measures? The answer is no, as Article 775 of the LEC is a regulation subject to national territorial jurisdiction and cannot be applied as a regulation subject to international jurisdiction.
Spanish authorities cannot assign international jurisdiction to themselves by applying Article 775 of the LEC or any other territorial jurisdiction article.
We can consider two scenarios in this context:
- Supposing we wish to amend a decree of divorce issued by a French judge when the affected minors live in Spain. Can it be stated that the Spanish court does not have jurisdiction as it did not issue the decree for which the amendment is sought?
The response is in the negative; the Spanish court has jurisdiction to rule on the amendment of measures as it is the current place of residence of the minors (Article 8 of Regulation 2201/2003).
- Supposing we wish to amend a Spanish decree of divorce of two French nationals who reside in Spain, but the mother and children have returned to France.
Does the Spanish court that issued the decree have jurisdiction to amend these measures, even if the parties are no longer here?
The answer is also in the negative.
Despite issuing the decree, the Spanish courts do not have jurisdiction to amend it. The French courts shall have jurisdiction as France is the current place of residence of the minors (Article 8 of the Regulation 2201/2003).
This remains exactly the same if the foreign decree is approved (enforcement) or entered into record, given that neither action affects the international jurisdiction criteria.
That a decree is recognised, registered or enforced in Spain has absolutely no bearing upon the jurisdiction of the Spanish courts to subsequently amend it. The international jurisdiction criteria must be met.
The Constitutional Court already cleared up this matter in ruling 61/2000 of 13. In that case, the Spanish courts declared that they did not have jurisdiction to amend any measures of a US decree of divorce, despite the fact that the mother and children lived in Spain, claiming that the order had to be amended by the court that issued it (from the US).
The Constitutional Court pointed out that the Spanish court had jurisdiction, despite the fact that it had not issued the decree, in accordance with the rules of international jurisdiction (which are related to the residence of the parties).
The EU Court of Justice recently ruled in a clear and similar way, by virtue of its ruling of 15 February 2017, which specifies that: “Article 8 of Regulation 2201/2003 (…) and Article 3 of Regulation 4/2009, should be interpreted along the lines that, in a matter such as the one under examination in the main proceedings, the courts of a Member State that have a adopted a judgment which has become res judicata concerning parental responsibility and maintenance obligations as regards a minor no longer have jurisdiction to rule on an application to amend the measures established in said judgement if the habitual residence of the minor is situated in the territory of another Member State. The courts with the jurisdiction to rule on that application are the courts of the latter Member State”.
Let’s hope that no backward steps are taken on this matter and that the amendment to Article 775 of the LEC in no way hinders the correct application of the rules of international jurisdiction in our country.