It should be noted that the geographic mobility of the population has made divorces with international elements more and more common. For this reason, jurisdiction and applicable law, among other questions, have been regulated in various European regulations. 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.
On 22nd August 2022 the European Council Regulation 2019/ 1111 of 25 June (known as Brussels II Ter) will enter into force and replace the European Council Regulation 2019/ 1111 of 25 June. The new regulation also updates international law on international child abduction and illegal retention; but still contains errors and legislative loopholes.
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:
– 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 II 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 II 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 security is weakened because the final country can refuse to enforce the judgment.
Brussels II ter Regulation contains 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 Article 3, which “revolve around the nationality and/ or residence of the spouses”.
In accordance with such forums, 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.
4) In the case of an application by mutual consent, where one of the spouses resides in Spain
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, we facilitate two practical examples:
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? According to article 3 of b Regulation 2019/ 1111 Brussels II ter, the Spanish Courts have jurisdiction by virtue of the claimant’s habitual residence in Spain at the time of the claim.
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? Yes. The Spanish man can file for separation 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.
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