What is an international divorce?
An international divorce is the procedure for dissolving a marriage that includes a relevant foreign element. This may occur, for example, when the spouses have different nationalities, live in different countries, married abroad or have assets located in more than one State.
In these cases, before starting the divorce proceedings, two essential preliminary questions must be determined: which court has jurisdiction to hear the case and which law is applicable to the dissolution of the marriage and its effects.
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International jurisdiction
In Spain, jurisdiction to hear an international divorce is governed mainly by Regulation (EU) 2019/1111, also known as Brussels II ter, when it applies within the European Union.
As a general rule, the courts of the Member State in whose territory any of the following connecting factors is located may have jurisdiction:
- The habitual residence of the spouses at the time the application is filed.
- The last common habitual residence, provided that one of them still resides there.
- The habitual residence of the respondent.
- The habitual residence of either spouse, in the case of a joint application.
- The habitual residence of the applicant, if the residence requirements set out in the applicable rules are met.
When the spouses do not live in the European Union, several nationalities are involved or there are connections with third States, jurisdiction must be analysed on a case-by-case basis.
Law applicable to international divorce
The fact that a divorce is processed before Spanish courts does not necessarily mean that Spanish law will always apply. In divorces with an international element, the applicable law must be determined specifically.
In the European Union, Regulation (EU) 1259/2010, known as the Rome III Regulation, allows spouses to choose by mutual agreement the law applicable to divorce or legal separation, within certain options linked to their habitual residence, nationality or the court hearing the case.
If there is no agreement between the spouses, the Regulation establishes criteria to determine the applicable law according to the marriage’s links with the different States involved.
International divorce and minor children
When the marriage has minor children, an international divorce can become considerably more complex. Matters relating to parental responsibility, child custody, visitation arrangements or the child’s residence may be governed by rules other than those applicable to the divorce itself.
For this reason, in these cases it is not enough to determine which court may declare the divorce: it is also necessary to analyse which authority has jurisdiction to decide on the children and which rules apply to each measure.
Recognition of a foreign divorce in Spain
If the divorce has been processed abroad and one of the spouses needs it to produce effects in Spain —for example, to register it with the Civil Registry, marry again or enforce certain financial consequences— it may be necessary to recognise that foreign decision.
In some cases, automatic or simplified recognition mechanisms apply, especially within the European Union. In others, it may be necessary to apply for an exequatur, a procedure that allows a decision issued by a foreign court to be recognised in Spain.
The importance of specialised legal advice
International divorce is one of the most complex areas of Family Law. The choice of court, the applicable law, the procedural strategy and coordination with other countries can have very different consequences for each spouse.
An error in determining these elements may affect the validity of the proceedings, the effectiveness of the judgment or the protection of the parties’ personal, family and financial interests.