More and more often the subject of divorce in Spain arises where there are spouses from different countries. This throws up the possibility of other states' laws becoming relevant to the situation. So while Spanish divorce law is applicable, it does not operate in a vacuum and we must consider the laws of other states also.
In fact this can be a critical issue as the question of which laws apply in each legal jurisdiction in international divorce cases can greatly affect the divorce settlement that is reached.
For example, English divorce law can be quite different to Spanish law with regard to child maintenance or alimony provision. And while a couple who have habitually resided in Spain during the course of their marriage could be expected to have Spanish law applied, this is not always the case.
It is therefore important to address at the outset the rules on which country has jurisdiction to process a divorce application involving spouses of different nationalities or who are resident in different countries.
1. Which Legislation Applies
European Regulation 2201/2003 sets out the rules that determine which country has jurisdiction to hear and determine a divorce case, which is any country where:
- The spouses are habitually resident, or
- The spouses were last habitually resident, and one 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 UK and Ireland, has his or her "domicile" there, or
- Both spouses are domiciled
As can be seen from the rules above, a divorce petition may be considered to be filed correctly in more than one jurisdiction.
Where a petition for divorce is petitioned in more than one country then the 'first-past-the-post' principle applies which has of course permitted the practice of “forum shopping” to flourish. Forum shopping is where a spouse will seek to file for divorce in the jurisdiction that offers them more advantageous laws than their partner.
2. Applicable Law
While the question of legal jurisdiction is important, also of great importance is the question of which legal system or code of laws applies to the case before the court, regardless of the location of that court.
Articles 9.2 and 107 of the Spanish Civil Code establish that the applicable law is, in the first place, the law of the country of which both spouses are nationals. Where there is no common nationality, the applicable law is the law of the state in which both are habitually resident at the time of divorce.
Accordingly, a married couple composed of a Spanish woman and a British man would have the Spanish law of divorce applied where both are resident in Spain. Meanwhile, an Irish couple may apply for a divorce in Spain and have Irish law applied or request to have Spanish law applied should they wish.
Where between the spouses there is neither a common nationality nor a country of common residence, the law of the state in which the couple were last both habitually resident is applied.
3. Cost
It is worth noting that the application of foreign laws in a Spanish court would increase the cost and complexity of any hearing as the court would require depositions on the current state of the foreign law which would have to be provided by experts in that foreign law and which in turn would need to be translated and presented to the court.
So what are the practical implications of succeeding in having a divorce petition heard in one jurisdiction rather than another? Well, this rather depends on which jurisdictions we are comparing. For those interested, there is also a brief consideration of international divorce for UK citizens.
