This article is available in Spanish
In today’s globalized world, Rome III international divorce cases are becoming increasingly common.
Couples of different nationalities, marriages celebrated abroad, or changes in residence often raise complex questions about which law should govern the dissolution of a marriage.
If you’re navigating an international divorce in Spain or with a foreign spouse, understanding the applicable law is crucial.
In this article, we explain how this is determined under EU law, particularly through the Rome III Regulation, and how our law firm in Barcelona can assist you every step of the way.
Why is applicable law important in an international divorce?
The applicable law determines how the divorce proceedings will unfold: the requirements, the effects of the divorce, and to some extent, the rights and obligations of each spouse.
In cases where spouses have different nationalities or habitual residence in different countries, the choice of law can significantly impact outcomes such as division of assets, spousal support, and child custody.
This is not merely a technical issue — it can affect your personal and financial future.
The Rome III regulation: a cornerstone in EU international divorce law
The Rome III Regulation (Council Regulation (EU) No. 1259/2010) is the main legal instrument for determining the applicable law in cross-border divorce and legal separation cases in the EU.
It forms part of European private international law and applies in participating Member States, including Spain.
Its purpose is to harmonize the criteria used to determine which country’s law applies when a couple with ties to more than one country seeks a divorce.
How does the Rome III regulation determine the applicable law?
The Regulation sets out a clear hierarchy for establishing the applicable law, based on either agreement between the spouses or, in its absence, objective connecting factors.
1. Choice of law by the spouses (Article 5)
Spouses may mutually agree in writing to apply one of the following laws to their divorce:
The law of the State where the spouses habitually reside at the time of the agreement
The law of the State of their last habitual residence, if one of them still resides there
The law of the nationality of either spouse at the time of the agreement
The law of the forum (i.e., the court where the divorce is filed)
This agreement must be in writing and meet the formal requirements of the jurisdiction where it is made.
2. No Agreement? Automatic Rules Apply (Article 8)
In the absence of an agreement, the applicable law is determined in the following order:
The law of the State where the spouses are habitually residing at the time the court is seized
If not residing in the same State, the law of the last common habitual residence (if not more than one year ago and one spouse still lives there)
The law of the common nationality at the time of the court proceedings
If none of the above apply, the law of the forum (the court hearing the case)
What happens when foreign law must be applied?
It is quite common for Spanish courts to apply foreign law in international divorce cases.
For example, if the spouses are nationals of another country or previously resided abroad.
However, the application of foreign law is subject to Spanish public policy.
If a provision of foreign law contradicts fundamental Spanish constitutional principles, it may be excluded from application.
Frequently Asked Questions (FAQs) about Rome III international divorce
What law applies in an international divorce?
If spouses have made a valid choice of law agreement under the Rome III Regulation, that law applies.
If not, the Regulation provides objective rules based on residence or nationality.
Can I choose the law for my divorce if my spouse is from another country?
Yes, under Rome III, spouses can jointly choose the applicable law, provided it has a valid connection to their case (residence, nationality, or forum).
Does Rome III apply in all EU countries?
No, it applies only in EU Member States that opted in, including Spain, Italy, Germany, France, and others.
It does not apply in Denmark or the UK (especially post-Brexit).
Can Spanish courts apply foreign divorce laws?
Yes, if required by Rome III, Spanish courts are obliged to apply foreign law unless it contradicts Spanish public policy.
What is the Rome III Regulation?
It is an EU regulation designed to harmonize rules for determining the applicable law in international divorces.
It allows spouses to choose the law or provides automatic rules when no agreement is made.
Does the Rome III Regulation cover property division or child custody?
No, it only governs the law applicable to the divorce or legal separation itself, not issues like marital property or parental responsibility.
Need help with an international divorce in Spain?
Don’t let uncertainty about the applicable law affect your divorce outcome.
Our law firm in Barcelona specializes in international family law and can guide you through every aspect of your case with clarity and confidence.
Contact us today for a consultation.
We’re here to help.