What happens when a divorce petition is filed in Spain and the Spanish judge doesn’t have jurisdiction?

Complex situations can arise during divorce proceedings involving foreigners in Spain in terms of the jurisdiction to hear the petition. Although EU legislation gives Spanish courts extensive latitude to decide divorce cases with various international elements, not all situations are included. If a Spanish court accepts a divorce petition in a case that does not fall under its jurisdiction due to its international elements, the respondent may use a tool known as a declinatoria to challenge the proceedings due to lack of jurisdiction.

First, let’s see which divorce cases may fall outside of Spanish jurisdiction. European Union Council Regulation (EC) No 2201/2003, which establishes jurisdiction in matrimonial matters, indicates that the courts of a Member State, in this case Spain, can decide on divorces if the country in question is the habitual residence: of both spouses; of one spouse if it was the last habitual residence of both of them; of one spouse in the event of a joint petition; of the respondent; or of the petitioner if they have resided there for a year prior to filing the petition, or six months if they are a citizen of the country. Jurisdiction is also granted to the courts of a Member State where both spouses are citizens.

Thus, we find that divorce petitions in which a Spanish judge may not have jurisdiction are generally limited to those in which the respondent doesn’t grant their consent and neither of the parties are Spanish, nor do they still habitually reside in Spain.

If these circumstances arise, the Spanish court to which the petition was submitted should, after analyzing the situation, officially declare itself to not have jurisdiction and indicate which European court has jurisdiction according to the law. If, on the contrary, the Spanish judge agrees to process the divorce petition without noticing their lack of jurisdiction, the respondent would be entitled to file a declinatoria, or motion to contest jurisdiction, to protect their rights and ensure that the case is examined by the courts of the appropriate country.

What exactly is this procedural instrument called a declinatoria? According to article 39 of the Civil Procedure Law, a declinatoria is question of jurisdiction that is filed to report a court’s lack of jurisdiction in a matter it is ready to decide on. The respondent may submit it to the court where the petition has been filed or to the courts of their own place of residence. The proceedings will be suspended until the motion is resolved, although the court could take precautionary measures.

If you find yourself in an international divorce situation that may fit the aforementioned circumstances, with ICN LEGAL you can be certain of our full knowledge of the details that pertain to your specific situation and our ability to thoroughly defend your rights with our lawyers who are former judges specializing in family matters and international law.

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