In this new post, as lawyers specializing in family law, we want to again focus on an issue that often raises questions from our clients when they already have a divorce decree issued by a country outside of the European Union. In these cases, the exequatur procedure must be discussed.
An exequatur is a legal proceeding whose purpose is to verify whether a court ruling issued by a foreign country meets the requirements that allow for its enforcement in Spain, i.e. that it is just as valid as it would be if it had been issued by a Spanish judge.
In cases involving divorce or marriage annulment, final rulings issued in non-EU countries will have the binding force established by the relevant treaties in Spain. However, if there are no such treaties, we must refer to the provisions of the Law on International Legal Cooperation in Civil Matters regarding the exequatur procedure.
In other words, the exequatur of a divorce decree seeks to determine whether it is possible to have a foreign ruling recognized, and thus allow it to be enforced in a different country than it was issued in.
Who is the plaintiff or active party in an exequatur procedure?
● Any person in whose favor the divorce decree has been issued.
● Any person to whom the foreign ruling causes harm or prevents
from receiving a benefit that only the declaration can cease.
For the exequatur of a divorce decree to proceed, the following principles generally must be met:
1. Verification of treaties
Between Spain and the country that has issued the ruling. If they exist, they must be adhered to. If not, the principle of reciprocity established in the Law on International Legal Cooperation in Civil Matters applies.
At ICN LEGAL, we’re referring to cases in which there is reciprocity with the country of origin of the ruling, or when the country that has issued the ruling grants value to those issued by the country in which the exequatur is being processed.
To ensure the compatibility of the ruling with the laws of the country that is being asked to recognize it, a series of requirements, among others, must be met:
● It must not contravene the current laws of the country where it is being processed.
● The party against whom the ruling is invoked must be notified in accordance with the law.
● The ruling must be enforced according to the laws of the country where it was issued, i.e. it must be final.
This procedure is usually necessary when a person wants to remarry and their previous divorce must first be recognized in Spain. If you find yourself in this situation, don’t hesitate to consult with our lawyers, who are former judges.