INTERNATIONAL DIVORCE: The divorce of foreigners in Spain

The cases of marriage of couples in which one of them is not Spanish, or even both, but live in Spain and want to divorce in Spain, is an international divorce. That is, the rules of Private International Law apply, and in the case of couples with nationalities of the Member States of the European Union, the Regulations of the European Union will apply as far as competition and applicable law are concerned.

In accordance with Regulation CE/2201/2003, regarding jurisdiction, recognition and enforcement of judicial decisions in matrimonial matters, and parental responsibility, called Brussels II bis, Spanish courts will be competent to hear about divorce, separation or nullity, applying the following rules:

    Spanish Courts must be examined ex officio by them.

    The Spanish courts will be competent if in Spain there’s located:

• the habitual residence of the spouses, or the last place of habitual residence of the spouses, provided that one of them still resides there; or
• the habitual residence of the defendant; or
• in case of joint demand, the habitual residence of one of the spouses; or
• the habitual residence of the plaintiff if he has resided for at least one year immediately before the filing of the claim; or
• the habitual residence of the plaintiff in case he has resided there at least 6 months immediately prior to the filing of the claim and if he is a Spanish national: or
• if both spouses are Spanish nationals

In the event that none of these Member States is competent according to the rules of the Brussels II bis Regulation, the competence may be of one of them or of a third party by its internal law, in Spain. We collect the provisions of article 22.3 of the Organic law of judicial power.

“… In matters of personal and property relations between spouses, marriage annulment, separation and divorce, when both spouses have habitual residence in Spain at the time of the claim or the plaintiff is Spanish and has their habitual residence in Spain, as well as when both spouses have Spanish nationality, whatever their place of residence, provided they promote their request by mutual agreement or one with the consent of the other … “

In the cases of conversion of the legal separation into divorce, the same competition criteria indicated above apply, that is, if any of them are identified, the Spanish Courts are competent. In addition, according to Article 5 of the aforementioned Regulation, it states that the court that knew about the separation may also be competent.