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Spain - Recognition of foreign decisions on family matters

It is evident that, at present, and by virtue of migratory phenomena and the ease with which we have to extend our professional and personal lives beyond our usual place of residence or birth, new sociological realities are born, and therefore also legal. , which require a response of international jurisdictional cooperation.

Óscar Castañón Bayón Balms Abogados | Madrid-España

01/10/2021

España - Reconocimiento de resoluciones extranjeras en materia de familia

It is evident that, at present, and by virtue of migratory phenomena and the ease with which we have to extend our professional and personal lives beyond our usual place of residence or birth, new sociological realities are born, and therefore also legal. , which require a response of international jurisdictional cooperation.

The majority of states, aware of this, are progressively adapting their legal systems to this reality and, therefore, seek formulas that, while respecting their own laws, allow the recognition, and what is more important, the enforceability of certain resolutions issued by courts. foreign. Balms Abogados, if there is one thing that has been clear since its inception, is its international vocation, and therefore it has amassed significant experience in this field, which has evolved in parallel with the reality of our clients. The exequatur*, which is the traditional term by which this type of procedure is known, has intensified, thus gaining greater importance, especially in a subject as sensitive as family relations and, specifically, in the Law of family. It is not the purpose of this article to make a detailed analysis of the Exequatur procedure, but to claim its existence, which allows regularizing situations that are sometimes very entrenched, even more so when it comes to relationships arising in the field of marital crises, not always friendly.

As an example we want to illustrate the question of the last case that our Family Department has successfully resolved, although not without hard legal and material work. Thus, we have recently obtained an Order, now final, by which three resolutions issued by the Courts of Puerto Rico are approved and enforced, as the case may be, and which correspond to a single and complex divorce proceeding between a Puerto Rican citizen and a Spanish citizen. In the present case, it was not only necessary that the dissolution of the marriage by divorce issued by the aforementioned courts be recognized and executed in Spain, since the marriage was registered in the Spanish Civil Registry where the marriage had been celebrated –and therefore, in Spain continued the marriage in force for all purposes, but it was necessary to ensure that two subsequent resolutions on the modification of measures and alimony were equally recognized; without forgetting that, between said resolutions, there were other intermediate ones riddled with material errors, which corrected the previous ones, in which the affiliations were wrong or omitted among other issues that made the procedure difficult.

For this, it was very important to make a clear statement of the facts in the lawsuit and determine, on the date of filing the same, the correct instrument that must be invoked for the success of said action. In our case, the Resolutions were issued by a competent jurisdictional body of a third State, therefore, the Law of the European Union is not applicable and there is no applicable bilateral or multilateral agreement for the recognition and execution of resolutions in civil matters with Puerto Rico (which, let us remember, is an associated state of the United States). For all these reasons, the recognition and, where appropriate, execution of the Resolution of this divorce should be governed by the rules contained in arts. 52 et seq. of Law 29/2015, of July 30, on international legal cooperation in civil matters, given that it is a firm foreign resolution relapsed in a contentious procedure.

After exhaustive work aimed at perfectly ordering the Puerto Rican procedural iter, explaining it and accrediting it in the appropriate and valid manner in Law, the Court of First Instance and Instruction of Coslada No. 6, issued a resolution, after a report from the Public Ministry, and in the form of Auto, in which in its operative part it declares the following:

S. Sª AGREES: TO RECOGNIZE, and if applicable, to execute, in Spain, the Divorce Resolution dated November 5, 2014, Maintenance Modification Sentence dated October 24, 2017 and Resolution of April 12, 2018 on hearing and custody of minors, all issued by the competent authority of Puerto Rico (USA) and provided with the lawsuit.

Issue an appeal to the Civil Registry for its marginal annotation in the marriage registration of both spouses.

With this Order, both spouses obtain the registration of their divorce in the Spanish Civil Registry and, in case of controversy, they can invoke, both before the Courts of Puerto Rico, as well as before those of Spain, all those questions that may arise in the application of approved resolutions, putting an end to a long time of complex litigation, in most cases, avoidable.

* The exequatur is a term that "designates a special procedure that must be followed to ensure that the foreign decision produces certain effects or all possible ones, based on its approval"

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