When the divorce is between nationals of EEC Member States, Art. 3.1 of the CE Regulation 2201/2003 defines jurisdiction to resolve divorce matters, legal separation or annulment of marriages between spouses, and jurisdiction is applicable
- To the Courts of the State of habitual residence of the spouses or
- To the Courts of the State that was the last habitual residence of the spouses when one of them still resides there, or
- To the Courts of the State of habitual residence of the petitioner or
- In the case of presenting a joint petition to the Courts of the State of the habitual residence of one of the petitioners or
- To the Courts of the State of the habitual residence of the petitioner if they have lived there at least one year prior to presenting the divorce petition or
- To the Courts of the State that is the habitual residence of the petitioner, if they have lived there at least 6 months prior to presenting the petition and they are a national of that State, or in the case of England and Ireland are domiciled there or
- By the Tribunals of the nationality of both spouses, or in the case of the United Kingdom and Ireland the domicile of both spouses
The principal reference is the habitual residence, meaning to be “the place where a person has permanently or habitually established the centre of their interests”. So by this we can conclude that Spanish Courts would have jurisdiction except when neither of the spouses are Spanish or resident in Spain, or the petitioner has resided less than 6 months in Spain if they are Spanish, or less than a year if they are not Spanish, and when neither spouse wishes to submit themselves to the jurisdiction of Spain.
What about Parental Responsibility? Where parental responsibility is included in the divorce proceeding, initially the general jurisdiction is that of the Court of the State of Residence, and in particular when the child is resident in that State, but the Regulation also allows us to submit to the Tribunals of other Member States, in cases for example where the child resides in another member state.
What if we are divorced in Spain and want to have the Divorce Judgement (equivalent to the Decree Absolute) enforced in a MemberState? This can be done using a legalised copy of the Judgment, duly translated to the language of the country it needs to be enforced in, and a specific form referred to in art. 39 of the Regulation 2201/2003. In those countries where there are no bilateral agreements in place with Spain, we can apply to the issuing Court for an” Exequatur” or a recognition of the divorce Judgement.
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