Everyday it´s more common to find the so-called mixed marriages, which are nothing more than marriages where the husband and wife are from different countries. To be able to celebrate a mixed marriage in Spain it is necessary to process a file prior to the celebration of the wedding. This process is mandatory and it takes place in the Civil Register of the judicial body of residence of either of the spouses.
The couples that do not live in their country or those composed by a foreigner and a national citizen, with or without children, raise legal peculiarities that demand special attention.
Knowing the legislation that applies in each country and the legislation that is most beneficial in each case is essential when we speak about the legal security of mixed families or those that immigrate to a foreign country.
The most common issues, which can usually be avoided with prior assessment, occur in divorces, child custody, and the termination.
Separation and Divorce
They are governed by the national law common to both spouses at the moment when the demand is presented; if there isn´t a common nationality, it´s the nationality of the couple´s place of residency, and if they reside in different Nations, then they are governed by the Spanish law when the Spanish courts are declared competent.
In regards to Private International Law, the effects of the separation and divorce can be classified in three main groups:
- If the judge applies the law designated by article 107Cc. to establish the termination of the marriage or the separation, then this law is responsible for determining status of the spouses divorced or separated, and in particular, if the ulterior reconciliation of the spouses means the end of the separation.
- Regarding the relationship between the spouses and the spouses with their children, it will be the law that applies to each relationship who will determine the effect of the divorce or separation on the relationship in question.
- Regarding the new obligations raised as a direct consequence of the divorce or separation, they will be governed by the law that governed the divorce and or separation itself.
The law applicable to the divorce will be the one that decides if the settlement agreement is admitted or not, and regarding which matters may relate and which are not available to the parties. However, the clauses included in the settlement agreement that relate to the previous marital relationships will be valid as long as they comply with the laws that govern each particular effect. Regarding pensions and Social Security benefits, the effects of the divorce or separation sentence are governed by the applicable law regarding pensions and benefits, in accordance with private international Law.
En materia de pensiones y prestaciones de la Seguridad Social, los efectos de la sentencia de separación o divorcio quedan sometidos a la ley aplicable a la pensión o prestación, de acuerdo con las normas de Derecho internacional privado.