International Divorce in Spain
Freedom of movement within the European Union has led to a growing number of marriages and family unions in which both spouses are foreign nationals, or at least one of them is.
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A divorce with an international element raises an added layer of complexity: establishing which court has jurisdiction, which law is to be applied, and how the resulting decision will be recognised or enforced in another country. There is no single answer, because it depends on the countries involved, on the habitual residence of the spouses, on their nationality and on whether there are children or assets abroad.
Two questions must be resolved before any proceedings are commenced. The first is international jurisdiction: where the spouses hold different nationalities, which court is competent to hear the divorce? The second is the applicable law: which body of law governs the dissolution of the marriage and its financial consequences? The two questions frequently lead to different answers, and getting them right at the outset is decisive for the strategy of the case.
In matters of divorce, legal separation or annulment connected with more than one Member State of the European Union, international jurisdiction is governed by Council Regulation (EU) 2019/1111 of 25 June 2019, known as Brussels II ter, applicable to proceedings instituted on or after 1 August 2022.
Where no European or international instrument determines jurisdiction, the residual rule in Spanish law is article 22 quáter (c) of the Organic Law on the Judiciary (LOPJ).
The European regulations on international divorce
Regulation (EU) 2019/1111 of 25 June 2019
Council Regulation (EU) 2019/1111 of 25 June 2019, on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility, and on international child abduction, applies to proceedings instituted on or after 1 August 2022. It recast the former Regulation (EC) 2201/2003, known as Brussels II bis, and it does not apply in Denmark.
Article 3 of the Regulation provides that jurisdiction lies with the courts of the Member State:
(a) in whose territory is situated:
(i) the habitual residence of the spouses,
(ii) the last habitual residence of the spouses, provided that one of them still resides there,
(iii) the habitual residence of the respondent,
(iv) in the event of a joint application, the habitual residence of either spouse,
(v) the habitual residence of the applicant, if he or she resided there for at least a year immediately before the application was made, or
(vi) the habitual residence of the applicant, if he or she resided there for at least six months immediately before the application was made and is a national of that Member State;
(b) of the nationality of both spouses.
Once it is established that Spain has jurisdiction, a second question must be resolved: which law applies. The fact that the Spanish courts are competent does not mean that they will necessarily apply Spanish law. It may well be that the law of another State has to be applied instead.
The applicable law is determined, on the one hand, by Council Regulation (EU) No 1259/2010 of 20 December 2010, known as Rome III, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, and on the other by Spanish domestic rules.
A practical example may help. Take a marriage between a French national and a Spanish national, resident in Spain for the past two years, with one child in common.
Jurisdiction will lie with the Spanish courts, since under article 3 of Regulation (EU) 2019/1111 both spouses were resident in Spain when the application was made. The position would be different if one of the spouses moved to another country: other jurisdictional criteria could come into play, and two States might each assume jurisdiction. This is what is known as forum shopping, the choice of the court of whichever country is most favourable to the interests being pursued.
As to the applicable law, in proceedings by mutual agreement the spouses may choose the law, provided it has a genuine connection with their situation. Failing such a choice, Spanish law will apply, as the law of their habitual residence. Here the criteria are hierarchical: where habitual residence cannot be established, the remaining connecting factors set out in Rome III apply in succession.
Although the European and international instruments aim at greater uniformity, every international divorce presents its own circumstances and requires individual analysis. Establishing jurisdiction and applicable law correctly can be the difference between a favourable outcome and a damaging one. That is why specialist advice in international family law matters from the very first step.
Divorce between Spain and the United Kingdom after Brexit
Since 1 January 2021 the European regulations no longer apply between Spain and the United Kingdom. Neither Brussels II ter nor Rome III governs a Spanish-British divorce today, and jurisdiction is determined instead by Spanish domestic rules, principally article 22 quáter of the Organic Law on the Judiciary, and by the applicable Hague Conventions.
The practical consequence is significant for the British community resident in Spain. A British divorce decree no longer takes effect in Spain automatically: it generally requires the exequatur procedure. The same is true in reverse. Where there are assets or children in both countries, the order in which proceedings are commenced can be decisive.
Will the Spanish decision be effective in the other country?
Obtaining a favourable judgment is of limited value if it cannot be enforced where the assets or the children are. Within the European Union, a Spanish divorce decision is recognised in the other Member States without any special procedure being required, and maintenance decisions are enforced under Regulation (EC) 4/2009 without exequatur between States bound by the 2007 Hague Protocol.
Outside the Union, recognition depends on the exequatur procedure or on any applicable bilateral treaty. We explain this in detail on our page on recognition and enforcement of foreign judgments.
Documents from abroad
Foreign marriage and birth certificates generally require the Hague Apostille and a sworn translation into Spanish. Within the European Union, Regulation (EU) 2016/1191 removes the apostille requirement for certain public documents and provides multilingual standard forms. Coordinating this documentation is frequently what determines how long a cross-border case takes.
See also our pages on international family law, international child support and international matrimonial property regimes.
Legal solutions for cross-border divorce
We analyse your situation so that you can take informed decisions on custody, assets, maintenance and international jurisdiction.