UNIT 6.- The Judge and Family Law in the EU .

1. UNIT 6.- The Judge and Family Law in the EU. Emelina Santana Páez Family Judge. Madrid Member of the REJUE (Spanish Judicial Network)

2. PROBLEMS TO BE EXAMINED When faced with a dispute with an international element, the following questions arise: • 1st INTERNATIONAL LEGAL JURISDICTION determine which court has jurisdiction to hear the application for divorce, separation or annulment of the marriage • 2nd CONFLICT OF LAWS specify which substantive legislation is to be applied by the court in resolving the application for divorce, separation or annulment • 3rd RECOGNITION AND ENFORCEMENT OF JUDICIAL DECISIONS ensuring the judgment rendered by the court is effective in a third state.

3. PERTINENT RULES • The Organic Law of the Spanish Judiciary only applies in the absence of an international instrument. • The answer should be sought in community law, as community legislation has primacy over the national legislation of each state. Domestic legislation has been displaced by community legislation. • Secondly, it is necessary to assess whether non-EU laws are applicable

4. PERTINENT RULES • The community regulations do not apply just to EU citizens. The rules on jurisdiction are essentially linked to the concept of residence, meaning that if there is a tie of residence with a Member State, the regulations will apply, regardless of whether the persons involved in the conflict are nationals of a Member State or non-EU citizens • The community regulations bind the Member States of the European Union; if by applying the rules of the regulation a particular Member State has jurisdiction but the defendant is resident in a non-EU state and its domestic legislation allows the matrimonial proceedings to be processed there, we are facing an international law problem, as the courts of that country, which are not bound by the regulations, may have jurisdiction over the divorce and render a decision. The problem arises when it comes to the recognition and/or enforcement of the judgment rendered by one state in another.

5. JURISDICTION • Separation, divorcee, annulment. Regulation 2201/2003. • Parental responsibility. Regulation 2201/2003 1996 Hague Convention • Maintenance.Regulation 4/2009

6. Regulation 2201/2003 JURISDICTION ANNULMENT SEPARATION DIVORCE • Spatial sphere: all Member States of the European Union, with the exception of Denmark • Temporal sphere: applications filed after 1 March 2005. • Material sphere: divorce, separation and annulment • Fora for jurisdiction: • The habitual residence of the spouses, or • The last habitual residence of the spouses provided one of them still resides there, or • The habitual residence of the respondent, or • The habitual residence of one of the spouses, in the case of a joint application; or • The habitual residence of the applicant having resided there for one year previously • The habitual residence of the applicant having resided there for six months if a national • The nationality of both spouses.

7. CASE STUDY Case study: 2 French nationals with primary domicile in Paris and habitually resident in Jaén since 2008. Jean and Michelle argue and Jean moves to Rome where he establishes his residence. Michelle remains in Jaén. Michelle can file the application in: • - Jaén a) paragraphs b) and e) - Rome a) paragraph c) • - in Jaén or Rome if filed jointly • - in Paris paragraph b). • Jean can file it in: • -Jaén a) paragraphs b), c) -Paris, paragraph b) • -in Jaén or in Rome if filed jointly

8. CASE STUDY • Two Moroccans with primary residence in Rabat but last habitual residence in Jaén. Ahmed moves to Rabat following the breakdown but Fátima remains in Jaén. Fátima can file the application for separation in Jaén pursuant to paragraph b) of section a) of the Regulation. The problem arises if Ahmed also wants to file it as he can do so in Jaén in accordance with the Regulation or in his place of residence in accordance with Moroccan legislation. In this case, the Moroccan court will have jurisdiction in accordance with its own legislation as community regulations do not form part of the Moroccan legal system and we do not have a bilateral convention covering lis pendens between Morocco and the EU Member States. This would give rise to two possibly incompatible judgments that would not be recognised by the respective states.

9. Regulation 2201/2003 JURISDICTION – PARENTAL RESPONSIBILITY • Place of residence of the child when the application is filed. • Extension of jurisdiction: three months following the change of residence with regard to the system of visits. • Courts with jurisdiction to hear the application for separation, divorce and annulment, even if the child does not live there when one of the spouses exercises parental responsibility over the child and when jurisdiction has been accepted by the holders of parental responsibility and is in the best interests of the child. • In non-matrimonial cases when one of the holders of parental responsibility is resident there or when the child is a national of said state and when jurisdiction has been accepted.

10. JURISDICTION – PARENTAL RESPONSIBILITY 1996Hague Convention • The general rule is that in this area the Convention is only applied if the child is habitually resident in a Contracting State (Article 5). There are two exceptions to this general rule: • in cases of urgency when the child is in a Member State but is resident of a third state (Article 11), and • in the case of provisional measures for the protection of the person or property of the child (Article 12), in which case the courts of the Member State in whose territory the child or property belonging to the child is present will have jurisdiction.

11. JURISDICTION - MAINTENANCE Regulation 4/2009 In force since 18-6-2011 or 2007 Hague Protocol • Habitual residence of respondent, • Habitual residence of creditor, • Courts with jurisdiction to hear applications on status (unless this jurisdiction is based exclusively on the nationality of one of the parties) • Courts with jurisdiction to hear applications regarding parental responsibility (unless this jurisdiction is based exclusively on the nationality of one of the parties.)

12. FOREIGN LAW EVIDENCE Article 281 Spanish Civil Procedure Act “The subject of the evidence shall also include custom and foreign law..... Foreign law must be proved as regards its content and validity, and the court may use any means of verification it considers to be necessary for its implementation” • European Convention on Information on Foreign Law done in London on 6 June 1968 • Inter-American Convention on Proof of and Information on Foreign Law, done in Montevideo on 8 May 1979. • Website of the General Council of the Spanish Judiciary, International Activities, Spanish Judicial Network (REJUE) • Website of the European Notarial Network

13. RECOGNITION AND ENFORCEMENT • INSTITUTIONAL SYSTEM………currently comprising EC Regulations 2201/2003 and 44/2001 • CONVENTIONAL SYSTEM…………….. comprising over twenty multilateral and bilateral Conventions. • AUTONOMOUS SYSTEM................where there is no international instrument. Domestic law applies; in the case of Spain, Article 951 et seq of the Civil Procedure Act

14. AUTOMATIC RECOGNITION EC Regulation 2201/2003 AUTOMATIC RECOGNITION Without the need for any procedure, but also without a request for any measure of enforcement. For example, the authorisation for surgery for a child. Or registry-related in the case of decisions of annulment, separation or divorce, which envisage an update (also automatic) of the data appearing in the respective civil registries of the Member States (Article 14. 1 and 2) This is also applicable to the decisions on visiting rights or the return of a child ordered by a decision of the Member State of origin (Articles 40 to 45 of Regulation 2201/2003)

15. INCIDENTAL APPLICATION FOR RECOGNITION • Article 21.4 states that where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue. For example, in proceedings regarding civil liability for an accident, there is a discrepancy between who holds the representation of the child for the purposes of receiving the indemnification.

16. JUDICIAL RECOGNITION OR EXEQUATUR PROCEDURE. GROUNDS FOR REFUSAL • with regard to decision on divorce, legal separation or annulment: - if recognition is contrary to public policy in the requested state; - default of appearance if the person in default was not served with the corresponding document; - if a decision was already issued in the requested state, another Member State or in a third state (it must be an earlier decision in the latter two cases) between the same parties, with the same object and the same cause.

17. WITH REGARD TO PARENTAL RESPONSIBILITY Additionally: • Article 23. “b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought; • Article 23. d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard; • Article 23 e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought; • Article 23 f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought”.

18. Bilateral and multilateral conventions on family matters • Spain has signed bilateral Conventions with, Austria, Brazil, Bulgaria, China, Colombia, Czechoslovakia (currently in force with the Czech Republic and Slovakia), France, Germany, Israel, Italy, Morocco, Mexico, Romania, Switzerland, Uruguay and the USSR (currently in force with regard to Russia only). In general and apart from containing largely similar requirements necessary for recognition, these Conventions can be divided into those that envisage recognition via the exequatur procedure, the majority, and those that establish automatic recognition. • With regard to the main multilateral Conventions, Spain has signed some, which do not refer exclusively to recognition. • Consult the Spanish civil Vademecum in each case

19. AUTONOMOUS SYSTEM – SPANISH CIVIL PROCEDURE ACT • Articles 952 to 958 of the old Spanish Civil Procedure Act • Jurisdiction: Courts of First Instance • It maintains two systems of recognition: reciprocity, which is obsolete, and the conditions system. • The conditions for recognising a judgment in Spain are set out in Article 954 of the Spanish Civil Procedure Act,: • The finality of the enforcement, according to the law of the state of origin; • That the action is of a personal nature (Article 954. 1º), • “that it was not rendered in absentia” (Article 954. 2º), if the respondent did not receive the notification in due time and form, it is not considered default; • The obligation whose fulfilment is being enforced is lawful in Spain (Article 954. 3º) and is not contrary to Spanish public policy, which excludes a review of the substance of the case; • The sentence being enforced must be authentic and have evidentiary value (Article 954. 4º Spanish Civil Procedure Act);