Currently, it is regulation 1259/2010 of the Council of the European Union which determines the criteria for choosing the law applicable to divorces and separations, provided that one or both parties involved are foreigners. It aims not only to strengthen legal cooperation between countries, but also to provide citizens with legal certainty while making it easier for judges to handle the proceedings.
This regulation establishes that spouses can agree in advance as to what law they want to have govern their divorce, if it is the member state to which they are most connected. In the absence of such an agreement, the regulation indicates that the law of the country where both parties have their habitual residence at the time the divorce petition is filed is applicable. Failing this, the law of the country where one of the spouses resides would also be valid.
Thus in principle, there is no issue with any couple composed of foreign citizens (or a Spaniard and a foreigner) that resides in Spain handling their divorce by applying Spanish law, with the jurisdiction of the Spanish courts. One aspect to highlight is that although we are talking about an EU regulation, it equally applies to non-EU citizens who reside in an EU member state. This is known as an erga omnes law.
At ICN LEGAL, we’re always prepared to advise our clients regarding divorces involving foreigners in Spain, clearly informing them of applicable legislation and handling the entire divorce process with them in order to ensure its success, with the key benefit of being able to communicate with them in English.