Is it possible to establish protective measures for a minor in Spain temporarily?

What happens when a married couple with minor children (who are temporarily in Spain) is involved in a situation that leads to their separation? While the Spanish courts (according to EU Council Regulation 2201/2003) are only able to act in cases involving the separation or divorce of foreigners in Spain if at least one of the spouses is a habitual resident, the protection of a minor may demand urgent intervention in the event of a conflict between their parents.

Once again, the aforementioned EU Regulation establishes that jurisdiction over parental responsibility falls to the State that is the habitual residence of the minor at the time the matter requiring a judicial decision arises. However, it is inescapable that there may be a situation in which a minor temporarily in Spain requires protective measures, considering that it can take 6 months or longer to acquire resident status.

What recourse remains, then, so that a Spanish judicial authority can intervene in such a case? Article 20 of the Regulation provides for the possibility of the courts of an EU Member State adopting protective measures in urgent cases that affect persons in their territory, even if another State may have jurisdiction by virtue of the stipulated conditions.

Thus, a Spanish court is empowered to urgently intervene and decree the appropriate measures to safeguard the minor’s interests and normalize their situation in the event that their parents separate during their stay in Spain. This helps avoid harm to the minor that would result from the amount of time it would take the competent court according to EU law to act, which would be the minor’s last State of habitual residence. When said court is prepared to adopt measures regarding the matter, the application of those that were temporarily decreed in Spain will cease.

Cases related to the divorce of foreigners in Spain require expert, detailed attention due to the different laws and jurisdictions that may apply depending on the specific circumstances. At ICN LEGAL, we’ve earned a reputation for providing optimal legal services to citizens of every nationality who find themselves in this situation.

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