I’ll give you an example: a Romanian citizen decides to study for a master’s degree in New York (USA). In the halls of the university, she meets her future husband: a Polish citizen. When they finish their studies, they decide to move to Germany because a great professional opportunity arises for her that she can’t pass up. After a few months, they decide to get married, so they travel to Romania for the wedding. They marry in that country, and spend a week visiting the bride’s family. They then return to Germany, where they live for a year, and their first child is born. Within a few months of this happy event, they move back to the United States, in this case to the city of Atlanta, Georgia, for the husband’s work. Their second child is born in this city. The family’s development continues until, three years later, the husband has a new job opportunity in a city in Spain, let’s say Barcelona. An opportunity that he can’t refuse. The husband goes on his own at first, and after a few months adapting to Barcelona, the entire family follows him, and the four family members are registered in a rented apartment. For the moment, they decide to keep the house they had bought thanks to a mortgage in Atlanta, and rent out the property so that they can pay for the Barcelona apartment. Thirteen months later, “the love runs out” and they decide to start divorce proceedings, so they each find a lawyer.
Does this seem convoluted to you? Well, this is the trend at law firms that handle international divorces.
When faced with international divorces, lawyers must have a very clear idea regarding details such as where the future divorce petition must be filed, which law will apply to the proceedings, and which will apply for the purposes of dissolution of the marriage. If there are minor children, we must also consider which country’s law will apply in terms of parental responsibilities and alimony. This is the part that surprises many clients, because in most cases, the “nationality” of the court that will take their case does not coincide with the law to be applied by the judge. In our example case (which really isn’t far-fetched), we know that there won’t be an issue with filing the petition in the Barcelona family courts. Article 36 of the Civil Procedure Law (LEC in Spanish) refers us to international treaties and conventions. Since Spain is a member state of the European Union, we must apply Regulation (EC) No 2201/2003 (Brussels II bis), concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. This regulation indicates that the Spanish courts have jurisdiction since the couple had resided in Barcelona for over a year at the time of the breakup. However, the fact that a Spanish judge is competent to hear an international divorce case does not mean that they must always apply Spanish law. We must distinguish between the law applicable to the divorce, the law applicable to parental responsibilities, the law applicable to alimony obligations, and the law applicable to the effects of the marriage or marital property regime. What if I told you that German law may apply to one of these aspects? Would it surprise you?
Despite marrying in Romania, the couple in our case (remember: she is Romanian and he is Polish) established their residence in Germany. In this case, we must first apply article 9, paragraph 2 of the Spanish Civil Code (CC), which establishes that the effects of marriage shall be governed by the personal law common to the spouses at the time of the marriage; in the absence thereof, by the personal law or law of the place of habitual residence of either of them, chosen by both in an authentic document executed prior to the marriage ceremony; in the absence of such a choice, by the law of the common place of habitual residence immediately after the ceremony; and in the absence of such a residence, by that of the place where the marriage ceremony was held. What this article seeks to ensure is that all of the couple’s connections that arise from the marriage, whether of a personal or property-related nature, are subject to a single regulatory law. This law, upon applying the points of connection in article 9.2 CC to our example, is German law.
Recall that the couple didn’t have a common national law at the time of their marriage (she was Romanian and he was Polish), nor had they chosen a law to govern the effects of the marriage, since we have no indication that they had drawn up a prenuptial agreement or equivalent document. Therefore, we must apply the third point of connection: the couple’s place of habitual residence immediately after marrying. In our example, a week after their wedding, they returned to Germany, where they had already established their habitual residence.
And what law will we apply with regard to the measures we must take with respect to the two minor children? This requires its own article. I promise to explain it in the future.
In summary, anyone facing a divorce with international elements must ensure, above all, that they hire the right professional, since the lawyer must specialize in this area. International law is complex, and only certain lawyers master it; you must always leave your future and that of your family in good hands.
Managing Partner at ICN LEGAL