Following the publication of her monograph on PIL and non-judicial divorce, I have invited Nuria Marchal Escalona to provide an overview of the topic with a focus on the Spanish case. Nuria Marchal is a professor of Private International Law at the University of Granada (Spain).
The tag ‘non-judicial divorce’ does not refer to a single reality; it rather encompasses a number of ways to getting divorced out of court.
The comparison among legal systems allows for the conclusion that the regulation of non-judicial divorce is actually quite diverse, even in neighboring countries.
Roughly summarized, three models co-exist currently. In some jurisdictions, the competence for the dissolution of marriage in non-contentious cases is conferred to non-judicial authorities such as civil registrars, notaries or even mayors, in such a way that their intervention has a proper constitutive effect. This would be the case of Spain.
In other countries, like France, divorce results from the agreement of the spouses. There, the public authority’s role is very limited (Article 229-1st French Civil Code).
Finally, the dissolution of the marriage is pronounced by a religious court in Islamic-inspired legal systems, and are considered as ‘private divorce’.
This diversity accounts to a large extent for the difficulties met by applicants asking for a non-judicial divorce granted elsewhere to be effective in Spain. But also the issuance of a notarial deed of divorce in Spain in situations involving cross-border elements has to surmount a number of obstacles. The most relevant ones are address hereinafter.
Basic Features of Notarial Divorce in Spain
The de-judicialisation of the marital relationship took place in Spain by virtue of Law 15/2015 on Voluntary Jurisdiction. The Act empowers notaries to authorise divorce by mutual consent in both domestic and international cases. To this end, the spouses must draw up a regulatory agreement (Article 87 Civil Code). Besides, some material and procedural requirements must be fulfilled: a Spanish notary cannot issue a public deed of divorce if the settlement agreement is detrimental to one of the spouses, nor where there are non-emancipated minors, or minors with judicially modified capacity, who are dependent on the parents (moreover, children living in the family home and lacking an own income must consent to the measures affecting them).
A notary is also prevented from dissolving the marriage if the parties do not appear in person before him. In practice, however, this last requirement has fortunately been removed by Resolution of 26 January 2021 of the Dirección General de Seguridad Jurídica y Fe Pública allowing for the authorisation of a notarial deed of divorce with the intervention of a special proxy.
International and Territorial Jurisdiction
Spanish notaries can only grant a notarial deed of divorce in cross-border cases provided they are competent (internationally and territorially), both for the dissolution of the marriage and for determining inextricable related matters such as the financial regime of the marriage, the use of the home, or compensatory pension.
It should be noted that Spanish notarial authorities are not entitled to decide on the custody of minors – in other words, as already stated notarial divorce is only possible if the children of the marriage are of legal age, or emancipated.
To determine international jurisdiction, the notary will need to look into an array of legal instruments respectively addressing divorce and ancillary matters (maintenance, use of the family home and matrimonial property regime). This is the outcome of the limited material scope of application of the rules at stake. By way of consequence, the notary will be confronted with issues of characterization, as he will have to decide, for instance, if a particular institution pertains to maintenance or rather to the matrimonial property regime.
Already the question of the legal instruments applicable to the notary’s competence has not a straightforward answer. Whether Spanish notaries are bound by the provisions of the European instruments regulating international jurisdiction in the above-mentioned matters (Regulation No. 2019/1111, or Brussels II ter; Regulation No. 4/2009; Regulation No. 2016/1103), is unclear. It depends on whether they are ‘courts’ in the sense of the Regulations. However, the very notion is not univocal but varies from one instrument to another. Thus, while given the very broad concept of ‘court’ under Article 2.1 Brussels II ter, Spanish notaries will apply this Regulation to determine jurisdiction, they cannot rely on either Regulation No. 4/2009 or Regulation No. 2016/1103 to the same effect, for, according to them, they are not ‘courts’. For subject matters under the latter two Regulations, they are therefore bound by the jurisdictional criteria set out in the Spanish Organic Law of the Judiciary, in particular those listed in Article 22 quater f) for maintenance issues and in Article 22 quater c) for the dissolution of the marriage, and, where appropriate, the liquidation of the matrimonial property regime.
To grant the divorce, the notary has to be territorially competent too. Mismatches may arise in this regard. The allocation of competence among Spanish notaries to authorise a public deed of divorce follows Article 54 of the Notaries Act of 28 May 1862, according to which the spouses must give their consent either before the notary of their last common domicile or that of the domicile or habitual residence of any of them. It may happen that the international jurisdiction criteria do not allow for the identification of the notary territorially competent as indicated by the provision. Where two Spanish nationals resident in Germany apply for a notarial divorce in Spain, the Spanish notary will have international competence, but lack the territorial one. In such cases, one may argue the spouses can apply for divorce before any notary in Spain. The misalliance shows that the provisions of the 1862 Act are not adapted to the particularities of cross-border cases; de lege ferenda it should be amended.
The ascertainment of the law applicable to grant a public deed of divorce in cross-border cases is also a complex operation. The dissolution of the marriage has further consequences on the relation between the spouses, which must be dealt with separately from the divorce. Just like with international jurisdiction, this is a consequence of the limited scope of application of the rules currently in force. And, again, delimitation problems are accompanied by delicate issues of characterization, with which the Spanish notarial authorities must contend once they have identified the relevant legal regime, which depends in turn on whether they are ‘jurisdictional bodies” as required in the EU Regulations (and related Hague instruments).
There is no consensus on the meaning of ‘jurisdictional bodies’ for the purposes of applying the EU and Hague provisions on applicable law. The lack of agreement impacts negatively on the overall coherence of the system. It is here posited that a Spanish notary, when dissolving a marriage, is vested with a decision-making function of a constitutive nature: in other words, he exercises ‘jurisdictional functions’. Therefore, he must be considered as a ‘jurisdictional body’ in the sense of both Regulation No. 1259/2010 (Rome III) and the 2007 Hague Protocol. Moreover, the same solution should prevail for Regulation No. 2016/1103 in spite of the Communication made by the Spanish Government denying such quality to Spanish notaries. In fact, Spain should immediately correct the declaration. Nonetheless, in the meantime Spanish notaries remain bound by Articles 9.2 or 9.3 of the Spanish Civil Code in order to decide on the law applicable to the matrimonial property regime.
Regarding the specific conflict of law solutions, it is worth mentioning that choice of law is the basic connecting point under the Rome III Regulation (for divorce) and the Hague Protocol of 2007 (for maintenance), as well as under the national rules on the matrimonial property regime, although in the latter case the choice is operative only in the absence of a common nationality of the spouses (Article 9.2 of the Spanish Civil Code). This parallelism facilitates the task of the notary, as it prevents legal fragmentation and problems of qualification and delimitation. However, coordination may fail since the possibility to choose the applicable law varies in scope depending on the instrument where it is embodied.
It may thus happen that, in order to determine the legal framework of the divorce and the ancillary issues, a notary must combine the law chosen by the parties for the dissolution of marriage with another one(s), the latter being ascertained through objective connecting points. Let’s take spouses of Spanish nationality residing in Italy and choosing Italian law to dissolve their marriage in Spain before a notary: the chosen law will be applicable [ex Article 5 a) R. Rome II] to the divorce, whereas Spanish law, ex Article 9.2 of the Spanish Civil Code, will rule on the economic regime of the marriage.
On a side note, it should be added that notarial divorce in Spain may be unnecessarily expensive due to the Spanish Declaration to the Rome III Regulation, coupled with a Resolution-Consultation of the Dirección General de Seguridad Jurídica y Fe Pública of 7 june 2016. According to the Declaration, the choice of law agreement must be concluded prior to obtaining the divorce – in other words, it is not possible before the court.
Besides, additional formal requirements under Article 7 of the Regulation are needed: the choice of law must be granted in an authentic instrument (before a notary public), or an ‘authentic document’ (a document whose date and signatures by the parties are unequivocal, even if it does not take the form of a notarial instrument). Eventually, choosing the applicable law requires a public document different from the public deed of divorce – therefore, higher costs for the spouses.
As of today, the recognition in Spain of foreign non-judicial divorce raises many doubts. Due to the plurality of rules in Spanish private international law, this is a highly topical issue, both essential and complex, starting with already with the determination of the applicable rules. One must take into account, besides the usual variables (origin of the divorce, date on which it was granted), the type of non-judicial divorce at stake. This requires examining if a public authority was involved and the role it played: whether or not it has exercised a constitutive function, and (more relevant), whether or not it has performed functions equivalent to those allocated to Spanish courts.
Under the broad concept of ‘court or tribunal’ under Brussels II ter and Regulation No. 4/2009, all authorities in the Member States with jurisdiction in matters falling within the scope of said Regulations can be considered as belonging to such category. That is to say, for the purposes of these instruments, any authority, official or professional is a ‘court’ provided that the legal system to which it belongs confers on it the power to dissolve the marriage.
The CJEU ruled along these lines in its judgment of 15 November 2022 (Case C-646/20): a divorce settlement entered into before the Italian Registrar of Vital Statistics equates a court decision, provided that the issuing authority carries out a review of the settlement, i.e., of the conditions of the divorce under national law, and of the validity of the spouses’ consent. By analogy, a Spanish notarial divorce must be recognised as a ‘judicial determination’ in other Member States, since Spanish notaries perform such tasks. Had it not been withdrawn, the question referred to the Court of Justice of the European Union for a preliminary ruling in Case C-304/22 should had been solved along these lines.
The other ‘side of the coin’ of this broad definition of ‘court’ as interpreted by the CJEU is that a foreign divorce where the public authority has merely approved a private act does not constitute a judicial decision in the sense of the Regulations. This does not automatically entail the non-recognition of such divorce. In fact, Article 65 Brussels II ter acknowledges the effectiveness of registered private agreements and connects them with court judgments. From the procedural point of view, the equating of registered agreements to court decisions implies their automatic recognition in the terms of Article 30 et seq. of Brussels II ter.
Where European rules do not apply, conventional rules come to the forefront. Spain is a contracting State to a considerable number of bilateral conventions on recognition of decisions (ad ex. Colombia, Russia and China). However, for non-judicial divorce such conventions have little impact, either because family matters are excluded from their scope of application, or because they only apply to the recognition of ‘judicial decisions’, meaning those originating from jurisdictional bodies. This is the reason why many times the legal regime applicable to the recognition of a foreign non-judicial divorce will be defined by national (autonomous) rules. In Spain, there is a plurality of sources in the area:
- The Third Additional Provision of Law 15/2015 on Voluntary Jurisdiction, on the registration of foreign public documents in public registers.
- Articles 11 and 12 of the same Law, addressing registration in public registers of foreign decisions on voluntary jurisdiction (Article 11), and the effects in Spain of voluntary jurisdiction proceedings and acts agreed by foreign authorities (Article 12). Such provisions prevail over Article 41.2 of Law 29/2015 on International Legal Cooperation in Civil Matters, in accordance with the First Additional Provision of the International Legal Cooperation Act.
- Articles 323 and 144 of Law 1/2000 on Civil Procedure, on the recognition of foreign public documents.
- Articles 96 and 97 of Law 20/2011 on the Civil Register. These provisions deal with the recognition of foreign non-judicial decisions (Article 96) and of foreign extrajudicial documents (Article 97). They should prevail over the Law on Voluntary Jurisdiction when an application is made for the dissolution of the relationship to be registered with the Spanish Civil Registry.
In light of the foregoing, it is easy to imagine that ascertaining the competent rule and, therefore, the conditions to be checked to grant effects to a foreign extrajudicial divorce, can become a quite complicated endeavor.
It does not only depend on the type of divorce obtained (notarial, registered, etc.), thus on the document recording the divorce (notarial deed, extrajudicial decision or public act), but also on the effect that the recognition is intended to have (constitutive, evidentiary, entry into an official registry).
But, fundamentally, it will be conditional upon the function performed by the intervening authority, and on whether it corresponds to those of the Spanish judicial authorities in the field. Eventually, whether the foreign non-judicial divorce falls under the category of foreign ‘judicial decision” or rather under that of foreign ‘public document’, and the corresponding regime, depends on the answer to these questions.
The recognition of so-called ‘private divorces’, i.e. those dictated by a religious authority, poses even greater problems even if they are subsequently approved by a foreign authority. To qualify as a ‘decision’ and, therefore, for the autonomous legal regime on recognition of judgments to apply, the authority must have performed a constitutive function: in other words, it must have acted with ‘imperium’ in accordance with the system of origin. Otherwise, the foreign divorce will get a conflict-of-laws treatment. However, after the amendment of Article 107.2º of the Civil Code in 2015, there is no rule for that purpose under Spanish autonomous PIL provisions.
And, finally, it should not be forgotten that, more often than not, the decision or document on the dissolution of marriage by a non-judicial authority includes statements on the economic regime of the marriage, alimony and even parental relationship. According cross-border effectiveness to a foreign non-judicial divorce does not automatically benefit those ancillary matters. Let’s take a non-judicial divorce by mutual consent by notarial deed from Cuba: in Spain, it will generally be recognised as a non-contentious judicial decision under autonomous PIL. Should the divorce be accompanied by decisions on parental responsibility, the latter will fall under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The regulatory fragmentation existing in Spanish law in the area may give rise to problems of consistency, and eventually lead to semi-claudicating divorces, meaning that they are effective in terms of the dissolution of the marital bound, but not in terms of its effects in relation to children, maintenance or the liquidation of the matrimonial property regime.
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