Nowadays, it is increasingly common for couples to have a foreign partner or they are foreigners residing in Spain or they have been married outside of Spain and so on. All are common situations in our world today.
For this reason, in order to be able to focus on marriage divorce or separation, three factors must be taken into account:
Which will be the competent Court to hear the matter?
As for the Court competent to hear the case, in the European sphere the criterion of residence is governed and, thus, Council Regulation (EC) No. 2201/2003, of November 27, concerning competence, recognition and enforcement of judicial decisions in matrimonial matters and of parental responsibility, establishes the jurisdiction to hear divorce or similar proceedings of the State where the spouses usually reside in a general manner, with some specialties depending on the case.
When there are minors, the Spanish courts would also have jurisdiction when the minor is closely related to Spain, even though at the time of filing the application the minor is residing in a State outside the EU.
What legislation is applicable to the couple in situations of rupture?
With regard to the legislation applicable to the situation of crisis, in Spain, Article 107 of the Civil Code establishes priorities that must be applied successively in the absence of the previous one:
- common national law of the spouses
- law of residence of the couple
- law of the last common residence of the spouses if one of them still resided there
Regarding the liquidation of the assets of the couple, what matrimonial economic regime is the one that governs the assets of the couple?
Finally, regarding the matrimonial property regime, within the EU, article 9.2 of the Spanish Civil Code as well as the Hague Convention of March 14, 1978, applicable to marriages celebrated after the month of September. 1978, establish that in the first place, the matrimonial economic regime will be the one that expressly pacts the spouses (marriage contracts) and in the absence of pacts, the law of common habitual residence will govern immediately after the celebration of the marriage or in the absence thereof, the law of the place of marriage celebration. In Valencia, in the absence of a pact between the spouses, the economic regime of separation of property governs, by which the wife and husband individually keep their assets and profits.
With all this, couples who end their relationship while living in Spain will be judged in Spain, regardless of the nationality of the spouses, ruling the break by the rules of the common nationality of the couple and if they have different nationality, the break will be governed by the Spanish law also.Finally, as regards the liquidation of the assets of the marriage, the foreign law could be applied bearing in mind that this should always be proven before the Spanish Courts.
