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The most common problems, can often be avoided with previous assistance, are presented in divorces, children care and custody and settlement of matrimonial property regime and heritages.

— Competition and applicable law for mixed divorces
I

n these cases, as we are faced with an international element, as is the nationality of one or both of the spouses, the rule that results of application for the divorces between  foreigners  is the Regulation nº 2201/2003 of the Council of 27th of November  2003, relative to the competition , the recognition  and enforcement of  court resolutions  in matrimonial mater and of parental responsibilities, rule that applies in a preferential way, for what the internal legislation only will be applied alternatively.

 

By virtue of this Regulation, the Spanish Courts will be competent to know about the divorce between foreigners when is found in Spanish territory:

 

  • the habitual residence of the spouses, or
  • the last place of habitual residence of the spouses, as long as one of them still resides there, or
  • the habitual residence of the defendant, or
  • if the joint demand, the habitual residence of one of the spouses, or
  • the habitual residence of the claimant if he has resided there during at least one year immediately before the presentation of the demand , or
  • the habitual residence of the claimant in the case that he has resided there at least the  six immediate months before the presentation of the demand and has the Spanish nationality

 

Ounce these circumstances have been checked, if we see that none of them are found in Spanish territory, at first, the Spanish courts will not result competent to know of the divorce, and, therefore, attending to the established standards in the Regulation 2201/2003, we must determine which of the rest of State Members of the Regulation is competent to interpose before this the interested demand of divorce.

 

 

However, if analyzed the possible competence of the jurisdictional courts of the other State Members, we arrive to the conclusion that none of them results competent, we must attend to our internal legislation, specifically to the Organic Law of the Judicial, that establishes that the Spanish courts will be known of the divorce always that one of these fallowing situations are given:

 

  • that both spouses own habitual residence in Spain at the time of the demand, or
  • that the claimant is Spanish and has his habitual residence in Spain, or
  • that having both spouses the Spanish nationality, whichever is their place of residence, promote their petition for divorce of mutual agreement or one with the consent of the other.

 

The verification over the competence is an action that will be done directly by the Court to which has been presented the demand, for what in the case that the Regulation does not establish its competence, it will be declared of its own motion that it has no jurisdiction.

 

That does not prevent that, in the assumptions in which the urgency of the case is so required, in spite of not resulting competent to know about the substance of the matter, the Court to which the demand has been presented, in our case the Spanish Court, can adopt provisional or protective measures provided in its own legislation, measures that will end applying when the Court declared competent has adopted the measures that considers opportune.[/vc_column_text][/vc_column][/vc_row]

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