It should be noted that the geographic mobility of the population has made\ndivorces with international elements more and more common. For this reason, jurisdiction and applicable law,\namong other questions, have been regulated in various European regulations. International Treaties and European Union law have\nprimacy over national law. Spain, as part of the European Union and signatory to\nEuropean regulations, must apply them.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
The novelty of the\nregulation is that it also applies to:the attribution, exercise or termination of parental responsibility.\nIt therefore affects matters such as:<\/p>\n\n\n\n
– custody, <\/p>\n\n\n\n
– visiting\nrights, <\/p>\n\n\n\n
– guardianship,\ncuratorship and similar institutions, <\/p>\n\n\n\n
– foster care or\nplacement of minors, <\/p>\n\n\n\n
– measures for the\nprotection of minors in relation to the administration, conservation or\ndisposal of their property.<\/p>\n\n\n\n
The great facility\nof the Brussels II ter Regulation is that it abolishes the obligation of\nexequatur, although this is not an absolute elimination.<\/p>\n\n\n\n
The recognition of\nforeign judgments becomes more complicated, as Brussels II ter establishes the\nprocedure for suspending the enforcement of a foreign judgment and even\nrefusing to enforce it, based on the \u00abbest interests of the child\u00bb.<\/p>\n\n\n\n
We may find that a\ndecision on the custody or responsibility of a child is directly enforceable in\nanother member state of the Convention, and yet the latter refuses to enforce\nit.<\/p>\n\n\n\n
For example, a\nparent may abduct the child, and the country where the child is abducted may\nissue a new decision refusing to return the child to his or her country of\norigin, instead of directly enforcing the privileged decision of the country of\norigin. So instead of the judgment being enforceable by exequatur, the need for\nexequatur is eliminated but legal security is weakened because\nthe final country can refuse to enforce the judgment. <\/p>\n\n\n\n
Brussels II ter\nRegulation contains a number of alternative forums of international\njurisdiction and can be reviewed \u00abex officio\u00bb, which means that the\njudge can directly establish the competent Court. These are set out in Article 3, which \u00abrevolve around\nthe nationality and\/ or residence of the spouses\u00bb.<\/p>\n\n\n\n
In accordance with\nsuch forums, Spanish Courts have jurisdiction in matters of \u00abinternational\nmarriage crisis\u00bb in the following cases:<\/p>\n\n\n\n
1) When both spouses are habitually resident in Spain at the time of the\nlawsuit. <\/p>\n\n\n\n
2) When they have had their last habitual residence in Spain and one of\nthem resides there. <\/p>\n\n\n\n
3) When Spain is the habitual residence of the defendant. <\/em><\/p>\n\n\n\n 4) In the case of an application by mutual consent, where one of the\nspouses resides in Spain<\/p>\n\n\n\n 5) When the claimant has habitually resided in Spain for at least one year\nprior to the filing of the claim. <\/p>\n\n\n\n 6) When the plaintiff (the claimant) is Spanish and has his or her habitual\nresidence in Spain for at least six months prior to the filing of the\nlawsuit. <\/p>\n\n\n\n 7) When both spouses have Spanish nationality.<\/p>\n\n\n\n In order to illustrate the above, we facilitate two\npractical examples: <\/p>\n\n\n\n Example 1 <\/p>\n\n\n\n A Colombian citizen who usually resides in\nSpain brings an action for separation against her Moroccan husband who resides\nin Morocco. Can the Spanish court be declared competent? According to article 3 of b\nRegulation 2019\/ 1111 Brussels II ter, the Spanish Courts have jurisdiction by virtue of the claimant’s\nhabitual residence in Spain at the time of the claim.<\/p>\n\n\n\n Example 2<\/p>\n\n\n\n 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. <\/p>\n\n\n\n <\/p>\n\n\n\n You will find below some articles on the subject that may also be of interest to you:<\/p>\n\n\n\n DIVORCIO INTERNACIONAL: REGLAMENTO BRUSELAS II TER<\/a><\/p>\n\n\n\n DIVORCES INTERNATIONAUX: LE R\u00c8GLEMENT BRUXELLES II TER<\/a><\/p>\n\n\n\n CASO JUANA RIVAS: SUSTRACCI\u00d3N DE MENORES<\/a><\/p>\n\n\n\n MATRIMONIO FILIPINO: DIVORCIO Y NULIDAD<\/a><\/p>\n\n\n\n DIVORCIO INTERNACIONAL ENTRE DOS C\u00d3NYUGES VENEZOLANOS, CON UN HIJO MENOR VENEZOLANO\/ESPA\u00d1OL, TODOS ELLOS CON RESIDENCIA EN ESPA\u00d1A<\/a><\/p>\n\n\n\n COMPETENCIA JUDICIAL INTERNACIONAL EN LOS PROCEDIMIENTOS DE FAMILIA<\/a><\/p>\n\n\n\n SUSTRACCI\u00d3N DE MENORES: ESPA\u00d1A VS REINO UNIDO<\/a><\/p>\n\n\n