Private international law deals with conflicts of law in cases of an international nature. Due to the rise of globalisation, more and more marriages and partnerships are taking place, involving different countries and thus different legal systems. It is possible that more than one court may be competent to hear the case, just as more than one law may be applicable. There is thus a conflict of jurisdiction and a conflict of laws.
First of all, we must remember the primacy of international law and European Union law over national law. In the event of a conflict, the rules established by international treaties and case law, as well as the national laws of each country, will be applied to determine the competent court and the applicable law. In this regard, various factors established by such international rules must be considered, such as the habitual residence of the parties, the place where the conflict originated, the location of the assets in dispute, among others.
Cross-border matrimonial crises are increasing rapidly in number and pose difficulties of articulation. It is necessary to turn to private international law to find out which law is applicable: the laws of which country will govern the divorce. But it is also necessary to look to international law to find out which country’s court, or countries, will hear the divorce.
On many occasions we find that the same case has to be decided in courts in different countries, which will rule on different aspects; so that a judge in one country will decide on child maintenance, another judge will decide on the division of the couple’s assets, another country will decree the divorce, etc.
For illustrative purposes, we will use one of the cases handled by the firm: a couple of Algerian origin, with dual Spanish and Algerian nationality, resident in Spain for almost 20 years and with 4 minor children of Spanish nationality, born and raised in Spain.
The civil proceedings relating to the divorce, parental responsibility and child protection measures were held in one of the Courts for Violence against Women in Barcelona, but what would happen if legal proceedings were initiated in parallel in the country of the other nationality? This is exactly what happened in this case, since the opposing party, having initiated divorce proceedings in Spain, filed an introductory injunction in Algeria, requesting the dissolution of the marital relationship and authorisation to visit the children.
In this case, it is European Regulation 2201/2003 (Brussels II Bis) applies as regards jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.
In order to know the INTERNATIONAL JUDICIAL JURISDICTION of the divorce it is necessary to go to article 3 of this legal body which determines: the jurisdiction will fall on the courts of the Member State: in whose territory is located: the habitual residence of the spouses (…). Following this reasoning and the point of connection being the habitual residence, and this being in Barcelona, only the Spanish courts, and specifically those of Barcelona, have jurisdiction.
Jurisdiction in matters of parental responsibility and measures for the protection of children are regulated by Article 5 of the Hague Convention of 19 October 1996: the authorities of the State of the child’s residence have jurisdiction to decide on maintenance, parental authority and guardianship (measures for the protection of the child’s person and property). In our case the 4 children have resided in Spain since their birth, so the competent Court was the Court of Barcelona.
As for the LAW APPLICABLE to the divorce, Article 9.3 of the Spanish Civil Code establishes that divorce shall be governed by the law determined by Article 107 of the same body of law, which in turn refers us to the European Union or Spanish rules of Private International Law.
The European Union Regulation 1259 / 2010 (Rome III) provides in its Article 5 the possible agreement on the applicable law between the parties, provided that it is one of the national laws, the place of habitual residence of both or one of the spouses or the law of the forum (law of the court hearing the case). In the absence of a choice by the parties, it is Article 8 which indicates that the applicable law is the law of the country where the spouses have their habitual residence at the time the action is brought.
Spanish law would be applicable since the main residence is in Spain and the Spanish court was the first to hear the case (foral law). If the spouses had agreed to apply Algerian law, as it is national law for both of them, it could have been applied, but in our case, the husband filed an application in Algeria completely unilaterally, so Article 8 is applied in the alternative, as both parties did not reach an agreement. Therefore, the factor that determines the applicable law is again the habitual residence, i.e. Spanish law.
Finally, as regards parental responsibility and measures for the protection of the child, Article 9.6 of the Spanish Civil Code determines that the applicable law will be that determined in accordance with Article 15 of the Hague Convention of 19 October 1996. Which refers, again, in our case, to Spanish law.
It is important to bear in mind that, in cases of international divorce, the application of the rules is more complex and will depend on the circumstances of each case. Therefore, it is advisable to seek the advice of a lawyer specialised in international family law to obtain accurate and up-to-date information on the applicable law and the jurisdiction of the court in your specific case.
Please find below some articles that may be of interest to you, following the above topic.
https://bozarucosa.com/blog/an-international-view-of-matrimonial-law/
https://bozarucosa.com/blog/competence-internationale-mariage-responsabilite-parentale-et-aliments/
https://bozarucosa.com/blog/international-marriage-european-council-regulation-brusells-ii-ter/
https://bozarucosa.com/blog/matrimonios-con-elemento-internacional-reglamento-bruselas-ii-ter/
