What law applies to child support for the children of divorced foreign parents if they live in Spain?

One of the benefits that comes from our specialization in international family law is that it allows us to deal with the most specific circumstances, such as foreigners married abroad divorcing in Spain and the various consequences derived from this situation. While we have already analyzed the application of Spanish law and the jurisdiction of the Spanish courts in divorces involving at least one spouse of another nationality in a previous article, today we are focusing on a common question that arises in such cases: within the framework of a divorce, what law applies when resolving conflicts related to children with a foreign nationality? Specifically, one of the most important aspects we will highlight in this article is what law applies to child support.
 
Since Spain is a member of the European Union, we must focus primarily on Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Specifically, article 15, which establishes that “the law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the 2007 Hague Protocol) in the Member States bound by that instrument.”
 
That is, the aforementioned regulation refers us to another international instrument. Article 3 of the aforementioned Hague Protocol of 2007 stipulates its general rule on applicable law: “Maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor, save where this Protocol provides otherwise. In the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.” In this case, the “creditor” in question is the child owed support payments.
 
Thus, we can conclude that any conflict between foreign ex-spouses regarding children who reside in Spain will not only be resolved in Spanish courts, but the law of habitual residence of the child (which will generally be Spanish law if the child in question has their habitual residence here) must also be applied to child support, regardless of whether it is a divorce in Spain involving foreigners married abroad or other circumstances. You can count on ICN LEGAL to give you legal advice that responds to the most specific details related to your international case.
 

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