International divorce in Spain
The freedom of movement in the European Union has led to the existence of a greater number of marriages or family unions in which both spouses are foreigners or at least one of them.
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The regulation of family crises with a foreign element is extraordinarily complex, due to the enormous differences in its regulation, being necessary the adoption of normative instruments to determine the international judicial competence, the applicable law and the recognition and execution of administrative judicial resolutions. This regulation is scattered in different regulations and the law of each State must also be applied, which makes this task even more arduous, given the different existing regulations on the matter in each country.
There are two questions that must be known, on the one hand, which is the international judicial competence, that is, in a marriage with spouses of different nationalities, which is the court or tribunal that has jurisdiction to hear the divorce, as it would happen if there were minor children. And on the other hand, which would be the applicable law, that is to say, which legislation should be applied if that of the nationality of a spouse or that of the other spouse, because they can differ a lot especially in the economic questions.
In Spain, separation and divorce are governed by the rules of the European Union or Spanish private international law and are currently regulated by Council Regulation No. 2201/2003 and by Article 22 of the LOPJ, which establishes the “residual jurisdiction”, in the event that it cannot be established by virtue of the aforementioned Regulation:

International divorce regulations
Reglamento UE nº 2201/2003 (Bruselas II Bis)
On jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, establishes in its Article 3, the criteria for jurisdiction, based on the residence of the spouses:
- The habitual residence of the spouses.
- The last place of habitual residence of the spouses, provided that one of them still resides there.
- The habitual residence of the defendant.
- In case of a joint action, the habitual residence of one of the spouses.
- The claimant’s habitual residence if he/she has resided there for at least one year immediately prior to the filing of the claim.
- The claimant’s habitual residence if he or she has resided there for at least six months immediately preceding the filing of the application and is a national of the Member State concerned or, in the case of the United Kingdom and Ireland, has his or her domicile there.
Regulation 2019/1111 of 25 June 2019
On July 6, 2019, it was published in the Official Journal of the European Union the “Regulation 2019/111 of 25 June 2019 on jurisdiction and the enforcement of judgments in matrimonial matters and in matters of parental responsibility and international child abduction”, which will replace in these matters the current Regulation previously mentioned, and which will enter into force on August 1, 2022.
In the event that jurisdiction cannot be established by the above criteria, Article 22 of the LOPJ establishes the forum of jurisdiction according to which the Spanish Courts and Tribunals will have jurisdiction to hear the divorce:
- When both spouses possess habitual residence in Spain at the time of the lawsuit.
- When they had their last habitual residence in Spain and one of them resides there.
- When Spain is the habitual residence of the defendant.
- In case of an action by mutual agreement, when one of the spouses resides in Spain.
- When the plaintiff has been habitually resident in Spain for at least one year since the filing of the lawsuit.
- When the plaintiff is Spanish and has been habitually resident in Spain for at least six months prior to the filing of the lawsuit.
- When both spouses have Spanish nationality.
And once it is known whether Spain has jurisdiction to hear the judicial proceeding, it must also be known which law is applicable, because even though the Spanish Courts and Tribunals may have jurisdiction, it may happen that the legislation of another State must be applied.

To know the applicable law we must go on the one hand to the Council Regulation (EU) No. 1259/2010 of 20 December 2010, establishing enhanced cooperation in the area of the law applicable to divorce and legal separation and on the other hand we must also go to what our own legislation establishes.
The understanding of these questions is not easy given the legislative complexity that it entails, establishing an assumption for a better understanding, in a marriage between a French and a Spanish, with residence in Spain for two years and with a common child.
The judicial competence will correspond to the Spanish Courts, since and according to article 3 of the Brussels II Bis Regulation, both spouses were residing in Spain at the time of the lawsuit. It would be a different matter if one of the spouses moved his or her residence to another country, as the application of the other criteria or rules of jurisdiction could come into play, and we would find ourselves with the possibility that two different States could assume said jurisdiction, that is, the so-called “forum shopping”, i.e. the choice of the court of the country most convenient to the interests sought.
And as for the applicable law, if we are in a process of mutual agreement, the spouses could choose the law (as long as it has a connection), and in default of that choice, it would be the Spanish law, being the law of the habitual residence. In this case, for the establishment of the applicable law there do exist “hierarchical” criteria, because if the criterion of habitual residence cannot be established, in its “defect” the other established criteria will be applied.
In any case and even though the international legislation and regulations try to grant a greater unification and legislative uniformity to be able to give answer to the situations that arise, we are in front of matters that require a detailed and exhaustive study of each matter, to be able to advise and determine which is the best situation when an international divorce takes place.