We have discussed about International divorce in Spain, matrimonial regimes and other related issues on several occasions in previous articles. You could check them in our website.
Over the some of our next articles, we will try to resolve some of the common doubts that arise when two people want to divorce in Spain and one or both of them is not a Spanish national. In other words: when there is an international element or foreign nationality in the marriage. For example, in a marriage between a Spanish woman and a French man, or marriage between British, German nationals, etc.
In this article we will talk about International divorce in Spain. Where is it possible to get divorced and why is the habitual residence of the spouses important?
WHERE IS IT POSSIBLE TO GET DIVORCED?
There is one question that always arises in international divorce: where is it possible to get divorced?
This question is answered by Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility.
This regulation sets out a wide range of countries to which jurisdiction in divorce matters is conferred. The aim is to ensure the existence of a sufficient number of competent courts – i.e. courts in which divorce procedures can be brought – to satisfy the parties’ desire to terminate their marital relationship. Provision is therefore made for the spouses to be able to apply to different courts for a decision on the matter.
As regards divorce (and also legal separation and marriage annulment), the courts with jurisdiction to rule on divorce will be any of those indicated here:
– the courts of the Member State in which the spouses are habitually resident.
– or the ones of the last habitual residence of the spouses, provided that one of them still resides there.
– the habitual residence of the defendant.
– in the case of a joint application, the habitual residence of one of the spouses.
The parties will therefore be able to choose, depending on their situation, between all these Member States in which to bring their divorce proceedings.
WHAT DOES HABITUAL RESIDENCE MEAN AND WHY IS IT SO IMPORTANT?
When 2201/2003 regulation was passed, it was intended to link international divorce proceedings to the place where the married couple lived together. It is therefore very important to answer what is meant by the habitual residence of the spouses.
But knowing exactly what habitual residence is and what it means is not a simple question to answer. The importance of the habitual residence of the spouses is very important at the beginning of the proceedings, because it will serve to identify and finally locate which European judge will have jurisdiction.
Despite its importance, none of the European Regulations dealing with the habitual residence of the parties define it, nor do they establish criteria.
Thus, it is the courts that ultimately define what habitual residence means. Depending on whether it is a matter of matrimonial crisis (international divorce in our case) or inheritance and succession law, the criteria will be one or the other.
Some definitions can be found in the case law of the Court of the European Union. This court defines habitual residence as ‘the centre of life and interests’ of the person. In other words, the place where the person has a physical relationship of voluntary permanence with a State with stability, has personal ties with this State and is integrated.
In principle, the court that will be competent to deal with a divorce or separation claim, it would be one of the habitual residencies of the spouses. Or the last habitual residency of the spouses, as far as one still leaves there.
But each case must be analysed in detail in order to know where to file for divorce. If you would like legal advice about your divorce in Spain, 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
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