Divorce in Spain for foreigners raises specific questions of international jurisdiction and applicable law. Living in Spain, having Spanish nationality or having married in Spain does not, by itself, answer every legal question arising from an international divorce.
When spouses have different nationalities, live in different countries or have assets and children across borders, determining whether the Spanish courts have jurisdiction, and which law they must apply, is an essential first step.
Key Takeaways
- Foreign nationals may be able to divorce before the Spanish courts even if they married abroad.
- Jurisdiction and applicable law are separate legal questions.
- Within the European Union, international jurisdiction in divorce matters is primarily governed by Regulation (EU) 2019/1111 (Brussels II ter).
- The law applicable to divorce may be determined under Regulation (EU) No 1259/2010 (Rome III).
- Spouses may, within the limits established by Rome III, choose the law applicable to their divorce.
- Parental responsibility, maintenance and matrimonial property are subject to their own conflict-of-laws and jurisdictional rules and should be analysed separately.
1. Can Foreigners Get a Divorce in Spain?
Yes. Spanish nationality is not a prerequisite for obtaining a divorce before the Spanish courts.
The decisive issue is whether the Spanish courts have international jurisdiction under the applicable rules. In cases connected with EU Member States, jurisdiction in matrimonial matters is primarily determined by Council Regulation (EU) 2019/1111 of 25 June 2019, commonly known as Brussels II ter.
The Regulation establishes several alternative jurisdictional grounds based principally on the spouses’ habitual residence and, in certain circumstances, their common nationality.
2. Can Foreigners Get Divorced Before a Notary in Spain?
In certain circumstances, a divorce in Spain for foreigners may be formalised before a Spanish Notary rather than through court proceedings. Spanish law allows spouses to divorce by mutual consent by executing a public deed before a Notary, provided that the legal requirements for a non-judicial divorce are satisfied.
In particular, this route is not available where the circumstances of the family require the divorce to be dealt with judicially, because of the existence of minor children, or children in respect of whom judicial support measures attributed to their parents are in place. Where applicable, adult or emancipated children who have no independent income and live in the family home must also consent to the measures affecting them.
The spouses must appear personally before the Notary and must be assisted by a practising lawyer. The public deed records their unequivocal intention to divorce and incorporates the agreement regulating the legal consequences of the divorce.
For international couples, however, the possibility of obtaining a notarial divorce must also be examined from a private international law perspective. The fact that Spanish substantive law permits divorce before a Notary does not dispense with the need to establish that the Spanish authorities have international jurisdiction, and that Spanish law is applicable to the divorce.
Which Spanish Notary Is Competent for the Divorce?
The spouses cannot simply choose any Notary in Spain. Under Article 54 of the Spanish Notarial Act, consent to the divorce must be given before the Notary of the spouses’ last common domicile or before the Notary of the domicile or habitual residence of either spouse.
In an international case, territorial competence must be distinguished from international jurisdiction. It must first be established that the Spanish authorities have international jurisdiction over the divorce under the applicable private international law rules. Once Spanish international jurisdiction has been established and the requirements for a notarial divorce are satisfied, the competent Spanish Notary must be identified in accordance with the territorial rules laid down by Spanish law.
3. When Do Spanish Courts Have Jurisdiction for an International Divorce?
Under Article 3 of Regulation (EU) 2019/1111, jurisdiction may arise, among other circumstances, where Spain is the country of:
- the spouses’ habitual residence;
- their last habitual residence, insofar as one of them still resides there;
- the respondent’s habitual residence;
- in the case of a joint application, the habitual residence of either spouse; or
- the applicant’s habitual residence where the residence requirements established by the Regulation are satisfied.
Common nationality may also constitute a jurisdictional ground under the Regulation.
This means that an international couple does not necessarily need to have married in Spain, or even to be Spanish nationals, for the Spanish courts to have jurisdiction over their divorce.
4. Does Getting Married in Spain Mean You Must Divorce in Spain?
No. The place where the marriage was celebrated is not, by itself, a general ground of international jurisdiction for divorce under Brussels II ter.
A couple may have married in Spain but subsequently established their habitual residence in another country. Conversely, spouses who married abroad may later satisfy one of the jurisdictional grounds allowing divorce proceedings to be brought before the Spanish courts.
For this reason, the marriage certificate alone does not determine where an international divorce should take place.
5. Which Law Applies to a Divorce in Spain for Foreigners?
International jurisdiction and applicable law must not be confused. The fact that a Spanish court has jurisdiction does not automatically mean that Spanish substantive law must govern the divorce.
For participating EU Member States, including Spain, the applicable law is principally determined by Council Regulation (EU) No 1259/2010, commonly known as the Rome III Regulation.
6. Can the Spouses Choose the Law Applicable to Their Divorce?
Within the limits established by Article 5 of the Rome III Regulation, spouses may agree to designate the law applicable to their divorce or legal separation.
The available choices include, subject to the conditions laid down by the Regulation, the law of the State where the spouses are habitually resident when the agreement is concluded, the law of their last habitual residence where one spouse still resides there, the law of the nationality of either spouse, or the law of the forum.
The choice is therefore not unlimited. There must be one of the connections permitted by Rome III, and the agreement must comply with the applicable formal and substantive requirements.
If no valid choice has been made, Article 8 of the Rome III Regulation establishes a hierarchy of connecting factors.
In broad terms, priority is given to the law of the spouses’ habitual residence at the time the court is seized. If that connecting factor is unavailable, the Regulation considers their last habitual residence subject to specific conditions, followed by their common nationality and, ultimately, the law of the forum.
The sequence is mandatory: the applicable law is determined by the first connecting factor whose requirements are satisfied.
7. What If the Couple Has Children?
The existence of children introduces a separate legal analysis.
Jurisdiction over divorce does not necessarily determine jurisdiction over parental responsibility. Matters such as parental responsibility, custody and rights of access are governed by their own jurisdictional rules, in particular those contained in Regulation (EU) 2019/1111 where applicable.
Habitual residence of the child is particularly important in determining international jurisdiction in parental responsibility matters.
Accordingly, an international divorce involving children should not be analysed as a single jurisdictional question. The matrimonial proceedings and the measures concerning the children may require distinct assessments.
8. What About Child or Spousal Maintenance?
Maintenance obligations are also governed by a separate European and international legal framework.
Within the European context, Council Regulation (EC) No 4/2009 contains rules concerning jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
Consequently, the court dealing with the divorce and the law governing the divorce do not necessarily determine every issue concerning maintenance.
9. What Happens to Property in an International Divorce?
The dissolution of the marriage must also be distinguished from the liquidation of the spouses’ matrimonial property regime.
Where applicable, Council Regulation (EU) 2016/1103 provides rules on jurisdiction, applicable law and the recognition and enforcement of decisions concerning matrimonial property regimes.
Questions such as which matrimonial property regime applies, whether assets are jointly or separately owned and how property located in Spain should be dealt with may therefore require a separate private international law analysis.
This distinction can be particularly relevant where the spouses have lived in several countries or own real estate in Spain and abroad.
10. Do You Need to Be in Spain to Start Divorce Proceedings?
Not necessarily in every case. International jurisdiction depends on the connecting factors established by the applicable rules rather than simply on the physical presence of both spouses in Spain when proceedings are commenced.
However, procedural requirements, representation before the Spanish courts, service of proceedings abroad and the documentation required to prove the marriage and other relevant circumstances must be considered in each individual case.
11. Will a Divorce in Spain for Foreigners Be Recognised Abroad?
This is a particularly important issue where the marriage was celebrated abroad and is recorded in a foreign Civil Registry. Obtaining a divorce in Spain does not necessarily mean that the spouses’ civil status will be automatically updated in every country in which the marriage is registered.
After a Spanish judicial or notarial divorce, it may therefore be necessary to take additional steps in the country where the marriage is registered so that the Spanish divorce is recognised and the corresponding foreign civil-status records can be updated.
The procedure required depends on the country concerned. Within the European Union, Regulation (EU) 2019/1111 provides a system of recognition of matrimonial decisions between Member States bound by the Regulation. As a general rule, divorce decisions given in one Member State are recognised in the other Member States without any special procedure being required. The Regulation also contains specific provisions governing the recognition of certain public documents and agreements concerning divorce, which are particularly relevant where the divorce has been formalised before a Spanish Notary.
Where the marriage is registered in a non-EU country, the position must be examined under the international conventions applicable between Spain and that country and under the domestic law of the State in which recognition is sought. Depending on that legal framework, an exequatur, judicial recognition, registration, transcription or another equivalent procedure may be required before the Spanish divorce produces full effects there.
This issue should not be overlooked. A person may be validly divorced under Spanish law while the foreign Civil Registry in which the marriage is recorded has not yet been updated. For this reason, international recognition should be considered as part of the legal planning of a divorce in Spain for foreigners, particularly where either spouse may subsequently need to prove his or her civil status abroad.
12. Why International Divorce Requires a Conflict-of-Laws Analysis
A divorce in Spain for foreigners may involve several legal questions governed by different instruments. Jurisdiction over the divorce, applicable divorce law, parental responsibility, maintenance and matrimonial property should not be treated as though they were necessarily governed by the same rules.
Identifying the relevant international and European instruments at the beginning of the case can prevent jurisdictional mistakes and help determine the appropriate legal strategy before proceedings are commenced.
13. Frequently Asked Questions About Divorce in Spain for Foreigners
Can I divorce in Spain if I am not Spanish?
Yes, provided that the Spanish courts have international jurisdiction under the applicable jurisdictional rules. Spanish nationality is not a general requirement for obtaining a divorce in Spain.
Can I divorce in Spain if I married in another country?
Potentially, yes. The place of celebration of the marriage does not by itself determine jurisdiction. Habitual residence and other connecting factors are generally more important.
Do I need to register my Spanish divorce in the country where I married?
If the marriage is recorded in a foreign Civil Registry, additional steps may be required for the Spanish divorce to be recognised and the civil-status record to be updated in that country. The procedure depends on the country concerned. Within the EU, Regulation (EU) 2019/1111 facilitates recognition without requiring a special recognition procedure in the situations covered by the Regulation. In non-EU countries, an exequatur, registration, transcription or other recognition procedure may be required under the applicable national law or international conventions.
Does a Spanish court always apply Spanish law to the divorce?
No. Jurisdiction and applicable law are different questions. The law governing the divorce must be determined under the relevant conflict-of-laws rules, including Rome III where applicable.
Can we choose Spanish law for our divorce?
In certain circumstances, yes. Article 5 of the Rome III Regulation allows spouses to choose the applicable law from a limited number of laws connected with their situation, including the law of the forum.
Can I get a divorce before a Notary in Spain?
Yes, in certain cases. A divorce in Spain for foreigners may be formalised before a Spanish Notary where the spouses divorce by mutual consent and the legal requirements for a non-judicial divorce are satisfied. The spouses must appear personally and be assisted by a practising lawyer. International jurisdiction and applicable law must nevertheless be examined before determining whether the notarial route is available in a particular cross-border case.
If we have children, will the Spanish divorce court automatically decide custody?
Not necessarily. International jurisdiction over parental responsibility is governed by separate rules and must be assessed independently, with the child’s habitual residence playing a particularly important role.
What if we own a property in Spain?
The divorce itself and the matrimonial property consequences of the marriage are distinct legal matters. Property ownership and the applicable matrimonial property regime may therefore require a separate analysis.
14. International Divorce Advice in Spain
International divorce cases require more than determining whether a marriage can be dissolved in Spain. Jurisdiction, applicable law, parental responsibility, maintenance, matrimonial property and cross-border recognition may each be governed by different rules.
I advise foreign clients on cross-border family law matters in Spain and provide legal assistance in English and French. Where a case involves proceedings or legal issues in more than one jurisdiction, coordination with lawyers in the relevant foreign country may also be appropriate.
If you are considering a divorce in Spain and your marriage has connections with more than one country, obtaining advice on jurisdiction and applicable law before proceedings are commenced can help identify the appropriate legal route and avoid unnecessary procedural difficulties.
