One of the most important times in which we may need the advice of a good Lawyer is when negotiating our divorce. This is due to the fact that there is a lot at risk when one decides to break up. In addition to this, each case is different and complex and we have to take its specific characteristics into account so that it does not affect our family relations or our assets. In the first place, we must establish that the international jurisdiction of the Spanish Courts in relation to divorce claims and proceedings is determined by the European Council Regulation 2201/2003, commonly known as new Brussels II. This Regulation applies to the jurisdiction of the courts and tribunals of the Member States of the European Union (except Denmark) and determines the forum or place where we can file our claim for divorce. As for the competence of Spanish courts, the Regulation concludes that the claim can be filed before the different Courts alternatively, allowing us a certain amount of “forum shopping” in order to choose the Court which is most favourable to our interests. Jurisdiction shall lie in the Courts of the Member States in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or,
- in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;
- of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.
Criteria to be considered in a divorce between foreigners
These criteria must be borne in mind, since if the spouses share a common nationality and are habitually resident in Spain, both the Spanish Courts and the Courts of the country of their nationality have jurisdiction to hear the case. It is the claimant who decides the Courts before which to file the claim. Due to the different possibilities, jurisdiction will be determined by the place in which the claim is filed first. In the second place, we must take into account that the marital status is generally determined by your nationality law. That is to say, the marital status of a Spanish citizen is determined by the Spanish Law. However, it is very important to underline that from the 21st of June 2012, article 107 of the Spanish Civil Code, which had regulated the Law applicable to legal separation and divorce up to date, has been replaced by the EU Council Regulation 1259/2010, known as Brussels III. This Regulation determines the Law applicable to divorce, and the following forums are applicable in case the spouses do not expressly designate an applicable Law: the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
- 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
- the law of the State of nationality of either spouse at the time the agreement is concluded; or
- the law of the forum.
That is, if the foreign spouses are habitually resident in Spain, the Spanish Law will be of application, but if neither of the spouses lived in Spain and the claim were to be filed before the Spanish Courts, the applicable Law would be that of the common nationality of the spouses. For example, if two French nationals get married in France and are habitually resident in Spain, it is perfectly possible to file a divorce claim before the Court of their habitual residence in Spain, or subsidiarily, before the rest of the forums established in article 3 of new Brussels II, applying the Laws of Spain. In addition to this, there are many cases in which the spouses do not share a common nationality. An example of this being a couple in which one spouse is a Swedish national and the other is a Dutch national who have their habitual residence in Spain. In these cases, the spouses may divorce in Spain and the Spanish Law can be of application. We must also take the spouses´ agreement on matrimonial assets into account. If the spouses do not share a common nationality and have been habitually resident in Spain immediately after their marriage and no agreement on matrimonial assets exists, the Spanish Law is of application. In Spain, the common marital regime is joint ownership. However, there are some places such as Catalonia, Balearic Islands or Valencia in which the marital regime is that of separate ownership. If you have your habitual residence in any of these autonomous regions, unless agreed otherwise, the applicable regime will be that of separate ownership. However, if you live in the rest of Spain, joint ownership will be of application to you. That is why, when ending your marriage, the Law of your regional citizenship will be applied.
Due to the complexity of this matter, if you are a foreigner and you are thinking of filing a divorce claim in Spain, do not hesitate to contact Lexland Abogados. You will receive legal advice applicable to your specific case and we shall find the most favoured solution for your interests.