Divorce between foreigners in Spain. Applicable law to the divorce. Comments to the European Regulation. Legal advice

Divorce between foreigners in Spain. Applicable law.

When we talk about divorce between foreigners in Spain, there are many questions that our clients usually ask us about. We have already informed in previous articles about where we could file for divorce when there are nationals from different countries. Or, put another way, we tried to explain in front of which courts, of the different countries, we must file our claim for a divorce matter.

In today’s article we are going to speak about the law that should be applied to the divorce of foreigners in Spain.

What does applicable law mean?

When we speak of the applicable law to a divorce, we are referring to the laws that will govern the problem in question. When there is no foreign element, that is, when the person’s ties are only with one country, the law of that country applies, that is clear.

Sometimes, however, certain matters are connected with more than one country.

For example, there may be a connection with various countries because a person wants to make a Will in a country of which he is not a national. Or because two people are married and are nationals of different countries, etc. In these situations, as happens in divorces that are started in Spain between foreigners, we will have to know if the law of one country or another, applies.

In many cases it is not an easy task to determine and requires a detailed study.

European regulation

Regarding divorce between foreigners, what law should be applied?

And it is that, although Spanish judges may have the competence to resolve divorces between nationals of different countries; Spanish law will not automatically apply as the law that should govern the divorce.

To find out which law must govern our divorce, we will have to go to Regulation (EU) No 1259/2010, for implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.

Applicable law in divorce between nationals of different countries

It must be emphasised that, in relation to the law to apply to divorce, the freedom of the parties governs. This means that the spouses are given the possibility to choose which law is going to apply to their divorce, as long as it is one of the following laws:

  • The law of the country in which the spouses have their habitual residence at the time of the conclusion of the agreement.
  • The law of the country in which the spouses had their last place of habitual residence, etc.

In the event of lack of choice by the parties of the applicable law, Article 8 of the Regulation applies. Thus, it will apply the law of the state or country:

a) where the spouses are habitually resident at the time the court is seized; or, failing that,

b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that state at the time the court is seized; or, failing that

c) of which both spouses are nationals at the time the court is seized; or, failing that,

d) where the court is seized.

Conclusion

If you want to get a divorce in Spain, and you or your spouse are a foreigner (non Spanish nationals), you need to know what law will apply to your divorce. It is necessary to be able to negotiate a possible agreement. Or file for divorce.

If you want legal advice in Spain regarding divorce between foreigners, contact us and we will help you.

The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal matters.

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

White & Baos 2022 – All Rights Reserved.

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