The regulation of “international matrimonial crises” in private international law is complicated, by the fact that there are very pronounced differences between the regulations of the various state laws.
The responses of a legal system to marital crises, reflect: the moral, legal and ethical conceptions of the individual and the family at a given time. Thus, for instance, in some countries, until recently, divorce was not allowed (Malta), in others it does not exist (The Philippines); in others, legal separation does not exist, but divorce does (Germany, Sweden, Finland, Morocco). In some countries divorce is unilateral and can only be requested by the husband (certain Muslim countries, which allow repudiation); in other countries divorce can be granted by judicial or notarial declaration (Spain, France), while in other countries divorce can be granted before an administrative authority (mayors) (Japan), a religious authority (such as Rabbis in Israel) or a public notary (as an official, functionary)(Cuba), divorce can be granted by mere private agreement between the spouses without the intervention of any authority (Thailand), or, as in the Maldives, divorce is granted when one spouse tells the other spouse three consecutive times that he/she wants to divorce.
In Germany the child has to be heard, whereas in France a notarial divorce is possible even if minors are involved. In France, not only is the child not heard, but he or she does not have the protection provided by the public prosecutor’s office, and is therefore doubly unprotected.
There are countries where same-sex marriage exists, others where it is not recognised, and others where same-sex relations are a crime (Muslim countries) or a pornography offence (Russia).
The aim of this article is to reflect, from a practical perspective, and from the perspective of Spanish private international law, the “international matrimonial crises”, which are experiencing a normative boom.
It should be noted that divorces with international elements are becoming increasingly common. For this reason, jurisdiction and applicable law, among other questions, have been regulated in various European legislations to show you how the complex regulatory framework works.
International Treaties and European Union law have primacy over national law. Spain, as part of the European Union and signatory to European regulations, must apply them. This is set out in Spanish domestic law, in Article 21.1 of the Organic Law of the Judiciary LOPJ: “The Spanish civil courts shall hear claims arising in Spanish territory, in accordance with the provisions of: international treaties and conventions to which Spain is a party, the rules of the European Union and Spanish law”.
In a divorce, when there are minor children in common, there are several measures that must be regulated: we are not only talking about divorce and child support, but also about the rest of the measures concerning the children. In order to establish parental responsibility, guardianship, visiting arrangements, and wealth distribution, we must know which law and forum is competent. Foremost, it will have to be established which court will have jurisdiction and then which law will be applicable to the case.
1.- COMPETENCE
The main regulation is the European Council Regulation Number 2201/2003 of 27 November concerning: jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, whose scope of application includes: divorce proceedings with international elements (known as Brussels 2 Bis). On its application, mention should be made of the judgement of the Court of Justice of the European Union, which states that “it should be recalled that, as part of Union law, Regulation Number 2201/2003 takes precedence over national law“.
This Regulation divides Chapter II on Jurisdiction into different sections: the first section deals with divorce, legal separation and marriage annulment; the second section deals with parental responsibility.
Brussels II bis regulation itself separates declaratory proceedings concerning the status of a person (divorce, separation or marriage annulment), from those relating to parental responsibility. Therefore, these proceedings may, depending on the jurisdiction in each case, be heard, be prosecuted, be tried, separately before the Courts of different Member States of the European Union.
While it is true that, according to Spanish procedural law, measures relating to divorce and measures relating to children: are considered as a whole, and are tried in the same main proceedings,
it is also possible to regulate only measures relating to the child.
Thus, in the case of unmarried couples’ breakups (known also as “de facto couples”), measures relating to minors are regulated directly, without having to be linked to a declaration of separation.
As the legal systems of the various countries are so different, the Brussels 2 bis regulation has had to be improved by the European Council Regulation 2019/ 1111 of 25 June, which will replace it and enter into force on 22 August 2022. Its name is BRUSSELS 2 TER.
The new regulation also updates international law on INTERNATIONAL CHILD ABDUCTION AND ILLEGAL RETENTION.
the new regulation, which has not yet entered into force, still contains errors and legislative loopholes.
Brussels 2 Ter contains 98 recitals and 105 articles.
The novelty of the regulation is that it also applies to: the attribution, exercise or termination of parental responsibility. It therefore affects matters such as:
– custody,
– visiting rights,
– guardianship, curatorship and similar institutions,
– foster care or placement of minors,
– measures for the protection of minors in relation to the administration, conservation or disposal of their property.
– The great facility of the Brussels 2-ter Regulation is that it abolishes the obligation of exequatur, although this is not an absolute elimination.
The recognition of foreign judgments becomes more complicated, as Brussels 2 ter establishes the procedure for suspending the enforcement of a foreign judgment and even refusing to enforce it, based on the “best interests of the child”.
We may find that a decision on the custody or responsibility of a child is directly enforceable in another member state of the Convention, and yet the latter refuses to enforce it.
For example, a parent may abduct the child, and the country where the child is abducted may issue a new decision refusing to return the child to his or her country of origin, instead of directly enforcing the privileged decision of the country of origin. So instead of the judgment being enforceable by exequatur, the need for exequatur is eliminated, but legal certainty, is worsened because the final country can refuse to enforce the judgment.
Both regulations: BRUSSELS 2 BIS and BRUSSELS 2 TER, contain a number of alternative forums of international jurisdiction and can be reviewed “ex officio”, which means that the judge can directly establish the competent Court;
These are set out (in both regulations) in Article 3, which “revolves around the nationality and/ or residence of the spouses”.
- According to these for Spanish Courts have jurisdiction in matters of “international marriage crisis ” in the following cases.:
1) When both spouses are habitually resident in Spain at the time of the lawsuit.
2) When they have had their last habitual residence in Spain and one of them resides there.
3) When Spain is the habitual residence of the defendant. the respondent is habitually resident in Spain.
4) In the case of an application by mutual consent, where one of the spouses resides in Spain. in the event of a joint application ,either of the spouses is habitually resident.
5) When the claimant has habitually resided in Spain for at least one year prior to the filing of the claim.
6) When the plaintiff (the claimant) is Spanish and has his or her habitual residence in Spain for at least six months prior to the filing of the lawsuit.
7) When both spouses have Spanish nationality.
In order to illustrate the above, two practical examples have been provided:
Scenario 1
A Colombian citizen who usually resides in Spain brings an action for separation against her Moroccan husband who resides in Morocco. Can the Spanish court be declared competent?
Article 3 of both Regulations: 2201/ 2003 BRUSSELS 2 BIS, and 2019/ 1111 BRUSSELS 2 TER are applicable, and according to them, the Spanish Courts have jurisdiction by virtue of the claimant’s habitual residence in Spain at the time of the claim.
Scenario 2
A married couple, a Dutch woman and a Spaniard, wish to separate in court. They lived together in Spain for five years, but now live in their own country. Would the Spanish court have jurisdiction?
To decide on international jurisdiction, only Regulations 2201/ 2003, BRUSSELS 2 BIS, and 2019/1111 BRUSSELS 2 TER are the instruments to be used, because the respondent (the defendant) is a national of a Member State, and resides in a Member State. Therefore, the Spanish man can file for divorce in Spain: this is the court of the last habitual residence of the spouses, as one of them still resides there. He could also file in the Netherlands: habitual residence of the respondent.
2.- LAW APPLICABLE TO LEGAL SEPARATION AND DIVORCE
On 21st June 2012, Regulation 1259/ 2010 of 20 December establishing enhanced cooperation in the area of the law applicable to divorce and legal separation (better known as the ROME 3 REGULATION) entered into force in Spain. This Regulation will determine which of the different laws at stake will be applicable to divorce.
Firstly, the Rome III Regulation gives priority to the application of the law chosen by the spouses. It also establishes which law will apply to the divorce in the event that there is no agreement of the spouses. One of the aims of the rule is to try to prevent one spouse from filing for divorce before the other spouse in order to have the proceedings governed by a particular law which that spouse considers to be more favourable to the protection of his or her interests.
- Thus, we distinguish the following cases:
2.1.- APPLICABLE LAW CHOSEN BY MUTUAL AGREEMENT OF THE PARTIES
Spouses of different nationalities who are nationals of States which have adopted Regulation 1259 / 2010 may agree to designate the law applicable to divorce and legal separation, provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or.
(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or.
(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or.
(d) the law of the forum. (the law of the country in which the action is brought).
2.2.- APPLICABLE LAW IN THE ABSENCE OF CHOICE BY THE PARTIES
In the absence of an agreement between the spouses to establish the law applicable to the separation or divorce proceedings, Regulation 1259/2010 provides in Article 8 that divorce and legal separation shall be subject to the law of the State.:
- “where the spouses are habitually resident at the time the court is seized; or, failing that.
(b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that.
(c) of which both spouses are nationals at the time the court is seized the common nationality of the spouses; or, failing that.
(d) where the court is seized.” The Law where the lawsuit is brought.
If the applicable law does not provide for divorce or does not recognise equal access to divorce for each of the spouses on grounds of sex, the law of the country where the action is brought shall apply.
3.- SPECIFIC CASE OF DIVORCE IN THE PHILIPPINES
The Philippines is one of the few countries that has not legalised divorce, as I indicated at the beginning of this class. But could a Filipino couple get divorced in Spain?
3.1.- COMPETENCE
As we have already explained, and according to Brussels 2 bis Regulation, Spain could have jurisdiction in the event that the Filipino spouses comply with the rules of the forum. According to Article 3 of the Brussels 2 bis Regulation, if one of the above requirements (which operate alternatively) is met, the Spanish courts would have jurisdiction to divorce a Filipino couple. This will be the case if they meet, as indicated above, the connecting factor: residence. In other words, if a marriage has been celebrated in the Philippines, but the habitual residence of both spouses or that of the respondent is in Spain, they will be able to file for divorce in Spain, as determined by the conflict rule.
BUT WHAT DOES HABITUAL RESIDENCE MEAN?
Habitual residence is, according to the Court of Justice of the European Union, the place where there is a certain integration in a social and family environment, or “the centre of life and interests” of the person; we could define the centre of life and interests as the place where there is a physical relationship of permanence or stability with a State, as there are personal ties with the country in question, which are centred on family life, habitual residence, patrimony. Theycould also be professional and social ties. It will be for the competent court to determine, taking into account all the specific circumstances of each individual case, whether or not the person is habitually resident in that state.
3.2.- LAW APPLICABLE TO DIVORCE OR SEPARATION FROM A PHILIPPINE MARRIAGE
If the Spanish courts have jurisdiction, and the above requirements are met, could Spanish law be applied and the Filipino couple be able to obtain a divorce or legal separation? The answer is yes.
Firstly, Article 107 of the Spanish Civil Code determines:
“The nullity of a marriage and its effects shall be determined in accordance with the law applicable to its performance, tothe marriage celebration.
2. Legal separation and divorce shall be governed by the European Union law or Spanish rules of private international law.
Therefore, in the case of the civil annulment of a Filipino marriage, even if you have residence in Spain, only Philippine law could be applied, as it is the law of the place where the marriage was celebrated.
However, the situation changes with legal separation and divorce, as Article 107.2 of the Civil Code determines that it will be governed by the rules of the European Union or Spanish private international law.
In this regard, we should highlight the Rome 3 Regulation, as it provides for the possibility to choose the law applicable to the divorce.
3.2.1. If the spouses have chosen the law applicable to their divorce, ARTICLE 5 OF THE ROME 3 REGULATION shall apply:
“1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or.
(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or.
(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or.
(d) the law of the forum.
2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. not later than the date on which the court is seized.
3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum”.
Therefore, in the case of a marriage celebrated in the Philippines, nothing would prevent the spouses from designating Spanish law as the law applicable to their divorce, and consequently may divorce. Normally, they would do so on the basis of Article 5 dot (1) letter (a) or (b) of the Rome 3 Regulation (habitual residence of both or one of them).
3.2.2. If the parties have not chosen the law applicable to the divorce or legal separation, or the divorce is contentiously brought by one of the spouses, ARTICLE 8 OF THE ROME 3 REGULATION determines the subsidiary connecting factors, so. the law of the State is applicable:
- where the spouses are habitually resident at the time the court is seized (at the time when the proceedings are instituted); or, failing that.
- where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that .
- of which both spouses are nationals at the time the court is seized; or, failing that.
- where the court is seized.”
These criteria, these connecting factors, are hierarchical, so the first one shall apply, and in its absence, subsidiarily, the second one shall apply and so on with the following criteria. That is to say, if the spouses do not have the same habitual residence at the time the action is brought, the criterion to be followed will be the place of the last habitual residence, if not the place of nationality, etc.
However, when referring to a Filipino couple who want to divorce (and whose national law prevents divorce), Article 10 of the Rome 3 Regulation is very important because when the applicable law does not provide for divorce, as in the Philippines, the law of the forum (lex fori) can be applied. In this case, it would be the internal law of the court hearing the case, if for instance the Spanish courts have jurisdiction, the applicable law would be the Spanish law. In short, a Filipino married couple residing in Spain could divorce in Spain by applying Spanish law to the measures relating to the divorce.
“Article 10 Application of the law of the forum.
Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce, or does not grant one of the spouses equal access to divorce, or legal separation, on grounds of their sex; the law of the forum shall apply”.
In conclusion, the Rome 3 Regulation protects access to divorce, and in the event that a law that does not allow it (such as the Philippine law) is applicable, the law of the forum will apply. Therefore, the Filipino couple could divorce and apply Spanish law, which, in compliance with Spanish law, may divorce when at least 3 months have elapsed since the celebration of the marriage and it will not be necessary to allege any cause that justifies the breakdown of the marriage bond.
3.3. WILL THE SPANISH DIVORCE DECREE BE VALID (EFFECTIVE) IN THE PHILIPPINES?
An eventual Spanish divorce decree on a Filipino marriage would be valid. And once The Hague Apostille is obtained, that document will be automatically recognised in the Philippines.
4.- EUROPEAN MATRIMONIAL LAW
In the following, we will give a brief overview of comparative matrimonial law with regard to the division of property between spouses, and child support (alimony): in Spain, Germany, and the United Kingdom.
4.1.- SPAIN
It is very remarkable that Spain is the only country in which joint custody is the preferential system, the one that operates ex officio, from the birth of the children. In order to exclude joint custody, the spouse who wants to have sole custody must prove that the other parent has harmed the child in some way. In other countries, the mother normally has sole custody until the child is 5 or 7 years old.
It is also noteworthy in Spanish legislation that if the mother denounces the father for insulting her, or any of her relatives, or for having caused them any harm, the father automatically loses the right to visit the children, and of course custody of them.
A.- Distribution of property between spouses
Divorce gives rise to the dissolution of the matrimonial property regime and opens the liquidation of the common assets that may have been acquired, which culminates in the distribution of the common assets, between them, a process that will be determined by the property regime that governed the marriage. (community of property, separation of property, partitional regime), for which we will have to apply the foral law that regulates each system. (Catalan, Basque, Aragonese, Balearic law).
B.- Right to maintenance
B.1.- child support and general alimony
Alimony in Spanish law comprises everything that is necessary for: the maintenance, clothing, housing, health and education, that is to say, the basic and elementary needs of the obligor (the alimony creditor).
The persons liable to pay maintenance (obliged to pay alimony) are:.
- parents in respect of their children, until they reach financial sufficiency.
- Sons towards parents in need.
- the members of a cohabiting couple between themselves, whether heterosexual or homosexual (with regard to those regions where there are specific regulations on this matter).
- Collateral relatives up to the second degree, if closer relatives are missing (relatives in the collateral line-up to the second degree, if there are no next of kin).
The prerequisite is that the maintenance claimant is in need. In the case of adult beneficiaries, the requirement is that the lack of financial means is not the result of a cause attributable to them.
B.2.- To the spouse
Divorce entails the cessation (results in the termination) of the obligation of coexistence (cohabitation) and mutual support, so that neither spouse is obliged to support the other and therefore have no right to maintenance from each other.
However, if the divorce leads to a financial imbalance for one spouse in relation to the position of the other, resulting in an impoverishment of his or her former position in the marriage, the spouse who is worse off is entitled to a benefit from the other spouse to compensate for the imbalance.
I should also point out that child support and compensatory pensions between spouses in Spain are much lower than in Europe.
4.2.- GERMANY
A.- Distribution of property between spouses
If the spouses live in the community of property regime, the gains made during the marriage have to be divided upon divorce between the spouses. An exception applies if the distribution would be manifestly unfair, as would be the case if the spouse who has contributed the least has long been in culpable breach of the financial duties resulting (arising) from the marital relationship. Divorce-related debts are not taken into account.
If the spouses have agreed on a community of property regime, they have to divide all their assets. There are no penalties for the spouse at fault in the divorce.
In the absence of agreement between the spouses, the judge shall determine the allocation of the matrimonial home to one of the spouses. In the case of a rented flat, the judge decides according to his or her own discretion.
In relation to the objects of the trousseau belonging to both spouses, the judge shall divide them in an appropriate and equitable manner. Objects belonging to one of the spouses shall be attributed to the other spouse if the latter is to continue to use them and it is considered that the handover can be assumed by their owner.
Pension entitlements (Pension rights) acquired by the spouses during their married life (as statutory pension scheme, retirement pensions, as well as entitlements to benefits from the company pension fund or private insurance) have to be divided in the event of divorce by way of compensatory distribution. This ensures that both spouses share equally in the rights acquired during the marriage.
B.- Right to maintenance
B.1.- child support
Parents are obliged to support their children. Maintenance creditors are the children if they are unable to support themselves. The obligation of the parents to pay maintenance is determined according to their financial capacity. However, the financial capacity of the parents is calculated upwards, so it is not the available income that is decisive, but the income that can be earned. This is in contrast to Spain, where, despite the fact that it is not written down, the courts take into account exclusively the present situation, the status quo. As a matter of principle, parents must contribute to the maintenance of their children in proportion to their income and assets. However, the parent who has custody of the child fulfils his or her duty to support the child by providing care and assistance. This is also the case in Spain.
Food is defined as all the vital needs of the child, including the costs of adequate education; as in Spain.
B.2.- To the spouse
After divorce, the spouses must provide for themselves.
The divorced spouse is a maintenance creditor.
- as long as he or she has custody of a common child or cannot be expected to be gainfully employed due to physical or mental illness or infirmity existing at the time of the divorce.
- if, because of his age at the time of the divorce, he can no longer be expected to be gainfully employed as long as he is undergoing training, further education or vocational retraining to compensate for a disadvantage caused by the marriage. The prerequisite for this is that he or she should start this training as quickly as possible in order to gain access to gainful employment that will ensure his or her livelihood, and that there is an expectation that he or she will be able to complete it successfully.
- as long as and for as long as the spouse is unable to find suitable employment after the divorce.
- as long as and in so far as, for other compelling reasons, he or she cannot be expected to be gainfully employed and it would be grossly unfair to refuse maintenance if, taking into account the interests of both spouses, the income from suitable gainful employment is not sufficient to cover the cost of maintenance.
The amount of maintenance, which also covers the costs of adequate insurance in the event of illness and the need for care, is determined taking into account the standard of living of the married couple, as well as age and reduced earning capacity.
If the spouse liable for maintenance is unable, in view of his or her employment and property situation and taking into account his or her other obligations, to guarantee the creditor his or her maintenance without endangering his or her own livelihood, he or she shall only be obliged to pay maintenance in an amount that is fair, taking into account the divorced spouse’s income and property.
4.3.- UNITED KINGDOM
A.- Distribution of property between spouses
In England and Wales, the distribution of property on divorce is governed by the Matrimonial Causes Act from1973.
In the Anglo-Saxon system there is no matrimonial property regime.
The court may, on or after a decree of divorce, nullity or legal separation, order the transfer of property from one spouse to the other, to a common child or to another person, in the interests of the child.
Other provisions allow the court to, among other things, order periodical payments, order the sale of assets, make pension orders and order a lump sum payment. Courts have discretion to decide which orders to make in each case, depending on the particular needs and circumstances.
What is most important is the welfare of the children of the marriage who are under 18 years of age, as in most legislation.
There are several aspects that the courts must take into account in the exercise of their discretion :
- the income, earning capacity and the assets and other financial resources that each spouse possesses or may possess in the foreseeable future.
- the contribution of the spouses, both financial and otherwise, to the care of the home and children.
- the financial needs, obligations and responsibilities that each spouse has or may have in the foreseeable future.
- the family’s standard of living prior to the breakdown of the marriage.
- the age of the parties and the duration of the marriage.
- any physical or mental disabilities suffered by the parties.
- the contributions that each party has made or may make in the future to the welfare of the family.
- the conduct of the spouses, if it would be unfair not to take it into account in the distribution of property. This aspect seems unfair and its specific weight should be known, as well as the sense in which it is being applied in the courts.
- the value to each of the spouses of any benefits they might lose as a result of the divorce or marriage annulment.
B.- Right to maintenance
B.1.- child support
Measures concerning the situation of the children of both parents shall be submitted to the court before it issues a final judgment. After the divorce, both parents shall continue to have parental responsibility for the children of both spouses and for the children of other relationships for whom they had parental responsibility at the time of the divorce. Both spouses shall be obliged to maintain minor children who have lived with them as children of the family.
Parents may pay maintenance for their children or for any child of the family to the person who is responsible for them, but only until they reach the age of 18.
Parents who do not live with their children under the age of 16, or under the age of 19, if they are in full-time non-tertiary education (school or equivalent), pay maintenance through the government Child Support Agency which sets the alimony through an administrative rather than a judicial process. The child support is paid to the parent or the person who has custody. The custodial parent applies to the Child Support Agency, which calculates the amount.
The non-resident parent, who pays weekly payments, can also apply for maintenance.
In order for children of full age, in accordance with the Children Act 1989, to be entitled to receive Child support from their parents, the children must make a claim for maintenance, and prove that the maintenance is needed for further education, or to learn a profession, or in special circumstances.
Either spouse can receive Child support.
The non-resident parent, who pays weekly payments, can also apply for the child maintenance.
B.2.- To the spouse
The obligation to support the other spouse shall be extinguished on divorce, except as regards the disposition of marital property.
The provisions on the division of marital property in the event of divorce also apply in the event of legal separation.
Please find below some articles on the subject that may be of interest to you:
https://bozarucosa.com/blog/international-marriage-european-council-regulation-brusells-ii-ter/
https://bozarucosa.com/blog/matrimonios-con-elemento-internacional-reglamento-bruselas-ii-ter/
