This article is available in Spanish
Understanding international jurisdiction in divorces is crucial when navigating cross-border marital separations, especially when children and multiple nationalities are involved.
In an increasingly globalized context, it is not uncommon for marriages to involve people of different nationalities or residents in different countries.
Therefore, when these marriages dissolve and children are involved, common questions arises:
How do you divorce a spouse who is in a foreign country?
Which court has jurisdiction to resolve the divorce and the related child matters?
In this article, we will explain how international jurisdiction in divorces is determined according to Regulation 2019/1111, of June 25, 2019 (also named Regulation Brussels II ter).
What is the EU regulation 2019 1111?
Regulation 2019/1111 (Regulation Brussels II ter) governs international jurisdiction, recognition, and enforcement of decisions in matrimonial matters and parental responsibility within EU member states.
International jurisdiction in divorces: divorce vs. parental responsibility
International jurisdiction in divorces matters
Article 3 of Regulation 2019/1111 governs judicial jurisdiction in divorce, separation, and annulment matters.
This article establishes the criteria for determining which courts have jurisdiction to resolve the divorce in cases involving marriages with international elements.
The criteria for assigning jurisdiction are as follows:
Habitual residence of both spouses: The courts of a state will have jurisdiction if both spouses habitually reside there.
Last habitual residence of the spouses: If one of the spouses still resides in that state, the courts there will also have jurisdiction.
Habitual residence of the defendant: The competent courts may be those of the state where the defendant habitually resides.
Joint petition: If both spouses file the petition jointly, the competent courts will be those of the state where either of the spouses habitually resides.
Habitual residence of the petitioner: If the petitioner has resided in a member state for at least one year immediately before filing the petition.
Habitual residence of the petitioner and nationality: If the petitioner has resided for at least six months in a member state and is a national of that state.
Common nationality of both spouses: If both spouses hold the nationality of the same state, the courts of that state will have jurisdiction.
In cases of divorce with foreign elements, such as when one of the spouses resides in another country, this article is essential to determine the international jurisdiction of the divorce, based on the habitual residence of the spouses or the specific requirements of residence and nationality.
Jurisdiction in parental responsibility matters
Article 7 regulates jurisdiction in matters of parental responsibility regarding minor children.
In this case, the competent court will be that of the member state where the child habitually resides.
This rule is designed to ensure that decisions regarding custody and the child’s well-being are made in the country where the child has their habitual residence, providing stability and proximity.
Practical example
According to the Regulation Brussels II ter, it is easy to resolve issues that people often ask themselves: can I divorce my husband if he left the country?, can you divorce your wife in another country?
Imagine a marriage of Spanish nationality divorcing, but one of the spouses lives in France and the other in Spain.
Additionally, they have a minor child who habitually resides in Germany.
Divorce: According to Article 3, the competent court to resolve the divorce could be in France (where one spouse resides), or in Spain (if the other spouse meets the residence requirements).
In this case, the courts in Spain or France would be competent to resolve the divorce of the spouses.
So, can you file for divorce in two countries? Indeed, in cases like this, the answer is yes.
Parental Responsibility: For issues regarding the custody and visitation of the minor child, the competent court would be in Germany, as it is the country where the child habitually resides, according to Article 7.
Frequently asked questions about international jurisdiction in divorces
What is territorial jurisdiction in a divorce?
Territorial jurisdiction in a divorce is mainly determined by the habitual residence of the spouses.
If both spouses reside in the same member state, that court will have jurisdiction.
If they reside in different countries, jurisdiction can be determined based on other factors, such as the last common place of residence or the residence of the defendant.
Where do I file the divorce petition?
The divorce petition should be filed in one of the competent courts.
This will depend on the habitual residence of the spouses or, if certain requirements are met, the habitual residence of the petitioner or the last common place of residence.
How do I divorce someone who is abroad?
If one of the spouses resides outside of Spain, the divorce petition can be filed in Spain if the requirements established in article 3 are met.
It could also be processed in the country where the other spouse resides, if the criteria of the Regulation so determine.
How to get divorced in Spain if I got married abroad?
The place where the marriage was celebrated does not affect the possibility of divorcing in Spain.
If at least one of the spouses resides in Spain, the divorce petition can be filed with the Spanish courts, provided that the criteria established in the Regulation are met.
How can we help you?
If you need advice on a divorce in Spain for foreigners, or have questions about how to manage an international divorce with children and parental responsibility, our firm has experience in cases with international elements.
Whether you are facing a divorce abroad or a divorce of marriage in another country, we are here to help you resolve your case.
Contact us today, and we will help you resolve your case.