International Divorce fundamental factors

Nowadays in Spain it is ever more common that at least one person in a relationship is not Spanish or very possibly that neither are Spanish but are living as full-time residents here in Spain, having married abroad. As a result, when considering the difficult and complex situations that arise with separations and divorces, either between married couples or those in domestic partnerships it is necessary to bear in mind three fundamental factors:

• Which jurisdiction will be competent to hear the matter.
• Which state’s legislation will apply to the proceedings.
• With regard to the distribution of the matrimonial assets, what is the legal framework that underpins the ownership of those assets within the marriage.

1. Residency is key in the event of international divorce

Regarding the competent jurisdiction, within the context of the European Union, residency is key and European International Divorce Council Regulation 2201/2003, with respect to jurisdictional competence, recognition and enforcement of judicial decisions in matrimonial matters and parental responsibility, establishes that competence to hear divorce and similar proceedings lies with the State in which the spouses habitually reside, with some special individual rules for exceptional cases. When there are children involved in the proceedings, the Spanish Courts will also have competence to hear the case, when the child has close ties to Spain, even where at the time that the proceedings are filed, the child is resident in a State, outside the European Union.

2. Spanish civil code

With regard to the applicable legislation to the proceedings, in Spain, Article 107 of the Spanish Civil Code establishes the following options in order of priority:

1. the national law common to both spouses
2. the national law of the country where the marriage was celebrated
3. the law of the country in which the couple were both last resident, where one of the spouses is still resident there.

Finally, with regard to the financial rules applied to the distribution of the matrimonial assets, within the context of the European Union, Article 9.2 of the Spanish Civil Code as well as the Hague Convention of 1978, applicable to marriages celebrated after September 1978 must be considered.

These establish that, in the first place, the rules that determine the distribution of assets shall be any such as the couple have expressly agreed, (pre- and post-nuptial agreements) and in their absence, those rules which are applied in the region that the couple habitually were resident in immediately following the marriage or, if this does not apply, the law of the place in which the marriage took place.

3. Regional law

In Valencia, in the absence of an express agreement between the spouses, the financial rules that apply are known as ‘separación de bienes’ which means that the spouses keep their own individual assets and earnings. 

In summary, the Spanish Courts will normally have competence to hear divorce and separation proceedings between anyone resident in Spain, regardless of the nationality of the spouses, applying the law of the State of which both spouses hold nationality, and if the spouses have different nationality, Spanish law will apply. 

Finally, with regard to the distribution of distribution of matrimonial assets, the laws of foreign countries may be applied, though the same must be proven before the Spanish Court.