What law applies in case of divorce when both spouses have different nationalities in Spain?

With the increase in international marriages due to globalization and the free movement within the European Union (EU), it is increasingly common for spouses to come from different countries or to have married abroad but reside in Spain. In this scenario, the question arises: what legislation applies in a divorce between people of different nationalities in Spain?

The European Legal Framework: Roma III and Brussels II bis

Spain adheres to EU regulations regarding international divorces and separations. The key regulations are the Roma III Regulation (Regulation 1259/2010), which governs the applicable law, and the Brussels II bis Regulation (Regulation 2201/2003), which establishes the rules for judicial competence, with the new Regulation 2019/1111 gradually replacing the latter.

The Brussels II bis Regulation establishes specific criteria to determine which court has jurisdiction in divorce cases, such as the following:

1. The habitual residence of both spouses.
2. The last common habitual residence if one of the spouses still resides there.
3. The habitual residence of the defendant (the spouse who has not initiated the process).
4. In a joint application, the habitual residence of either spouse.
5. The habitual residence of the claimant (the one who files the case), if they have lived there for at least one year before filing the case, or six months if the claimant is a national of that country.

Choosing the Applicable Law: Roma III Regulation

Once the competent court is determined, the next step is to identify the applicable law for the divorce. Under the Roma III Regulation, spouses can choose the law they wish to apply to their divorce, as long as there is a sufficient connection with that country. This could be the law of the country where both spouses have their habitual residence, the law of the country of the last common residence if one of them still resides there, the national law of either spouse, or the law of the forum (the court handling the case).

If the spouses cannot reach an agreement on the applicable law, the Regulation sets out a hierarchy of criteria to determine which law applies:

1. The law of the country where both spouses habitually reside at the time the case is filed.
2. The law of the country of the last common habitual residence of the spouses if one spouse still resides there.
3. The law of the country of common nationality of the spouses.
4. The law of the country where the case is filed.

Exceptions and Limitations

There are situations where the chosen foreign law may not be applicable in Spain if it contradicts Spanish public policy. For example, if the foreign law does not allow divorce or sets out grounds for dissolution of marriage that violate fundamental rights, such as unequal treatment of spouses based on gender. In such cases, Spanish law may take precedence.

Practical Application: A Case Study

Let’s imagine a marriage between a French citizen and a Spanish citizen residing in Spain who wish to divorce. According to the Roma III Regulation, they could choose between Spanish law or French law. If they cannot reach an agreement, Spanish law would apply because it is the country where they both have their habitual residence.

Frequently Asked Questions about Divorce Between Foreigners in Spain

1. What happens if the spouses cannot agree on which law to apply in their divorce? If there is no agreement, the Roma III Regulation sets out a hierarchy to determine the applicable law based on criteria such as habitual residence or the nationality of the spouses.
2. Can a Spanish court apply the law of another country in a divorce between foreigners? Yes, according to the Roma III Regulation, a Spanish court can apply the law of another country if the spouses choose it, provided there is a connection to that law.
3. What criteria determine the competence of Spanish courts in international divorce cases? Spanish courts follow criteria such as the habitual residence of the spouses, the last common residence, the nationality of the spouses, or where the case is filed.
4. How does the Roma III Regulation affect the choice of applicable law in a divorce process? The Roma III Regulation allows spouses to choose the law that will govern their divorce, as long as there is a legitimate connection to the country whose law is chosen. If there is no agreement, a hierarchical system of criteria applies.
5. Is it possible to file for divorce in Barcelona if the marriage took place in another country? Yes, it is possible to file for divorce in Barcelona if one of the spouses resides there. It is advisable to consult a specialized lawyer for guidance on the legal process.

Sandra Márquez

Lawyer & CEO Expat&Legal Spain