Maybe you got married in the UK, in Gibraltar, or elsewhere in Europe, and you think that you need to get divorced in the country where you got married. Well, this is not the case. You can get your divorce in Spain and it will be recognised in the rest of Europe without much else to do. How is that so? EU Regulation 2201/2003, commonly known as Regulation Brussels II bis, governs international divorce cases. This Regulation sets out the jurisdictional criteria to determine the competent jurisdiction, as well as the obligation by EU Member States to recognise divorces obtained in other EU jurisdictions.
The first question that needs to be addressed is the issue of jurisdiction. Do Spanish Courts have jurisdiction to hear my divorce case? Well, the answer to this depends on Regulation 2201 /2003, which offers to the petitioner seven factors of international jurisdiction. The most obvious is the fact that both spouses are resident in Spain at the time of starting the legal proceedings in Spain, but even if one of the spouses is no longer here there is jurisdiction if the last common habitual residence of the spouses was here. Even if your spouse has never resided in Spain, jurisdiction applies if the party seeking divorce had been in Spain for a year. When applying all these rules, no consideration will be given to the nationality of the parties, which for the EU Regulation is almost never a decisive factor.
Where jurisdictional issues get a little bit more difficult is in matters of custody and visitation rights (parental responsibility). In these matters, jurisdiction is based only on the place of residence of the child. Although, of course, Spanish courts can deal with the custody over a non-resident child as long as both spouses agree so because they want to realise their divorce in Spain.
Access to Spanish jurisdiction can be simple and not only in Spanish courts. In Spain Notaries can also decide your divorce, provided you and your spouse are assisted by a lawyer, with only two conditions: the divorce must have been agreed by both spouses and there must not be any minor or dependent child. It is also worth mentioning that the length of the process for cases of divorce is short and that Spanish lawyers do not charge the high legal fees associated with the practice of the legal profession in the UK, therefore you can expect to engage a lawyer at a fraction of the cost in the UK.
Once you get your Spanish judicial decision of divorce (or even the one decided by a Notary) you are free to take this document to wherever you need to register it provided that you ask the Spanish authority for a certified copy of Annex I to EU Regulation 2201/2003. This annex serves as the European passport to your Spanish divorce, and you can have it registered in the EU country where you got married or in the EU country of your nationality.
Recognition of your Spanish divorce becomes more complex if you were married outside the EU or you are a national of a non EU Member State. In this case, access to Spanish Courts is as simple as described in the preceding paragraphs, but recognition of the Spanish decision will have to be done following the legal procedure for recognition of foreign judicial decisions applicable in your country.
Of course, there may be other reasons why you consider best not to seek a divorce in Spain, for example, when you are seeking a division of matrimonial property and most of the assets are located outside Spain.
Take note, if the most important assets are located in Spain you can get your division of matrimonial property here. You can also resolve maintenance obligations for both you and your children. This could include the right to use the common habitual residence in Spain regardless of who is the legal owner of the property. Custody and visitation rights are decided by common European standards. When divorcing in Spain, there is no need to specify the reason as to what caused the breakdown of the marriage (no unreasonable behaviour needs to be mentioned). In Spain we follow a no-fault system of divorce, meaning that the will of one of the spouses is enough reason to grant the divorce. This and other advantages of the Spanish divorce is why divorce in Spain is not only characterised in comparative law perspective as a no-fault divorce country, but also as a “fast-track” or “express” divorce country, something that in the case of Spain is accompanied by legal certainty as to the recognition of the divorce in your country of origin.
Miguel Checa Martínez
Senior legal advisor to Martínez-Echevarría Lawyers.