In applications to amend foreign judgments, there have traditionally been two problems: The first makes reference to international jurisdiction, in other words, what Judge can amend a judgment handed down by a foreign court with regard to minors or child support.
We already made reference to this issue in our article from 13 September 2017, clarifying that the same international jurisdiction rules that apply to minors and child support must apply to any amendment relating to them, pointing out the inadaptation of Article 775 of the Civil Procedure Act to international matters.
However, in the amendment of foreign judgments, there is also a second issue to be considered: whether or not there is the need to obtain the exequatur relating to the foreign judgment first in order to amend it.
It seems obvious that prolonging an amendment of measures (minors or child support) by requiring the exequatur of a resolution in order to amend it does not make much sense.
While this issue has long been resolved in the area of EU regulations (which have always provided for incidental recognition), with the amendment of non-EU judgments there has been case-law of all sorts, sometimes requesting the exequatur relating to the foreign judgment in order to amend it, and sometimes not.
Law 29/2015 which entered into force on 30 August 2015 on international legal cooperation in civil matters (known as LCJIC in Spanish) resolved this issue by introducing incidental recognition in its Article 44: “When the recognition of a foreign resolution is considered in an incidental manner in legal proceedings, the judge hearing the case shall rule in relation to said recognition within the legal proceedings in question according to the provisions of the procedural laws. The effectiveness of the incidental recognition shall be limited to what is resolved in the main proceedings and shall not prevent the application of an exequatur in relation to the foreign resolution”.
The LCJIC clears up all doubts regarding the validity of this incidental recognition to amend foreign judgments in its Article 45, pointing out that a foreign resolution may be amended by Spanish jurisdictional bodies provided that it has already obtained the relevant recognition through the main or incidental channel.
The judgment of the Provincial Court (AP) of Zaragoza of 28 November 2017 addresses this issue. The Court of First Instance indicates that it does not have jurisdiction to amend the measures as the judgment was handed down by a foreign judge (Algeria) and that, moreover, it cannot amend it until it has been subject to the exequatur procedure.
The Provincial Court of Zaragoza clarifies that both legal arguments are incorrect and that there is no need for an exequatur, rather the recognition required to amend a judgment may be that of an incidental nature.
Taking into account how long exequatur proceedings can go on for in our Courts (especially due to the notifications to non-EU states), these articles incorporated by the LCJIC will allow amendments to be made to judgments within a reasonable period, reinforcing the right to a process without any undue delays, particularly in these issues where speed is of the essence.
Act 42/2015 amended Article 775 of the Spanish Law of Civil Procedure (LEC), establishing that “where there are minor or disabled offspring involved, the Public Prosecution Service and, at any rate, the spouses may petition the court that granted the definitive measures to amend any measures agreed upon by the spouses or any adopted failing such agreement, as long as the circumstances taken into account at the moment of agreeing to or deciding on them have changed substantially.
This amendment means that jurisdiction to amend the measures rests with the court that ordered them, even if no one continues to live in that place.
The amendment at national level has been criticised as it affects procedural connecting factors and isolates itself from the doctrine of the Supreme Court and its Resolution on matters of jurisdiction of 16 December 2016. Is it reasonable to have to travel to Zaragoza to amend measures that were issued there if the parties reside in Madrid at the time of the amendment?
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Even if the amendment to this Article is a matter of national law, it may create confusion when the amendment of the measures has a foreign consideration.
Does this new regulation of Article 775 of the LEC affect the amendment of international measures? The answer is no, as Article 775 of the LEC is a regulation subject to national territorial jurisdiction and cannot be applied as a regulation subject to international jurisdiction.
Spanish authorities cannot assign international jurisdiction to themselves by applying Article 775 of the LEC or any other territorial jurisdiction article.
We can consider two scenarios in this context:
Supposing we wish to amend a decree of divorce issued by a French judge when the affected minors live in Spain. Can it be stated that the Spanish court does not have jurisdiction as it did not issue the decree for which the amendment is sought?
The response is in the negative; the Spanish court has jurisdiction to rule on the amendment of measures as it is the current place of residence of the minors (Article 8 of Regulation 2201/2003).
Supposing we wish to amend a Spanish decree of divorce of two French nationals who reside in Spain, but the mother and children have returned to France.
Does the Spanish court that issued the decree have jurisdiction to amend these measures, even if the parties are no longer here?
The answer is also in the negative.
Despite issuing the decree, the Spanish courts do not have jurisdiction to amend it. The French courts shall have jurisdiction as France is the current place of residence of the minors (Article 8 of the Regulation 2201/2003).
This remains exactly the same if the foreign decree is approved (enforcement) or entered into record, given that neither action affects the international jurisdiction criteria.
That a decree is recognised, registered or enforced in Spain has absolutely no bearing upon the jurisdiction of the Spanish courts to subsequently amend it. The international jurisdiction criteria must be met.
The Constitutional Court already cleared up this matter in ruling 61/2000 of 13. In that case, the Spanish courts declared that they did not have jurisdiction to amend any measures of a US decree of divorce, despite the fact that the mother and children lived in Spain, claiming that the order had to be amended by the court that issued it (from the US).
The Constitutional Court pointed out that the Spanish court had jurisdiction, despite the fact that it had not issued the decree, in accordance with the rules of international jurisdiction (which are related to the residence of the parties).
The EU Court of Justice recently ruled in a clear and similar way, by virtue of its ruling of 15 February 2017, which specifies that: “Article 8 of Regulation 2201/2003 (…) and Article 3 of Regulation 4/2009, should be interpreted along the lines that, in a matter such as the one under examination in the main proceedings, the courts of a Member State that have a adopted a judgment which has become res judicata concerning parental responsibility and maintenance obligations as regards a minor no longer have jurisdiction to rule on an application to amend the measures established in said judgement if the habitual residence of the minor is situated in the territory of another Member State. The courts with the jurisdiction to rule on that application are the courts of the latter Member State”.
Let’s hope that no backward steps are taken on this matter and that the amendment to Article 775 of the LEC in no way hinders the correct application of the rules of international jurisdiction in our country.
The exequatur is a procedure regarding the approval of judgments rendered by foreign judges by means of which it is sought that they take effect in Spain. At present, it is regulated by Law 29/2015, of 30 July, on international legal cooperation (LCJIC) which repeals Articles 951 and thereafter of the Spanish Civil Procedure Law (LEC).
The request to initiate the exequatur procedure is to be adapted to the requirements of Article 399 of the Civil Procedure Law (Article 54.4 of the LCJIC) and will have to be filed at one of the courts indicated in Article 52.1 of the LCJIC.
Said Article 52.1 states: “The jurisdiction to hear exequatur requests lies with the Courts of First Instance in the residence of the party regarding whom recognition or enforcement is being requested, or of the person to whom the effects of the foreign legal ruling refer. Subsidiarily, territorial jurisdiction shall be determined by the place of enforcement or by the place where the ruling must take effect, whereby the Court of First Instance before which the exequatur procedure is filed is that which is ultimately competent”.
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Regarding exequatur requests when the parties reside in different places in Spain, negative conflicts of jurisdiction have, on occasions, arisen. The ruling of the Supreme Court of 1 March 2017 addresses this issue:
In this scenario settled by said ruling, the exequatur of a divorce ruling rendered in Morocco is requested.
The claimant resides in Gavá and the defendant in Alicante.
The plaintiff (ex-wife) files a request for exequatur in Gavá, her place of residence. The Court of First Instance of Gavá declared its lack of territorial jurisdiction as the residence of the defendant was in Alicante.
The Court of Alicante then rejected the inhibition and the Supreme Court went on to resolve the negative conflict of jurisdiction in the sense that the divorce ruling must take effect for both parties and that, therefore, if the claimant files the claim in his/her residence, this is a territorially competent jurisdiction to hear the exequatur.
Thus, given that the effects of the foreign divorce ruling affect both parties, the jurisdiction may lie with both that of the residence of the claimant and that of the defendant, with no preference between one or the other, as the legislator does not indicate the subsidiary nature of any of them. Courts are alternative and, thus, the claimant can choose.
This interpretation by the Supreme Court is nothing new, but rather a constant position in our courts that already existed in the application of Article 955 LEC (currently repealed) which practically had the same wording as Article 52.1 LCJIC.
In this regard, see ruling of the Supreme Court of 25 May 2016.
And what if there are minors involved?
If minors are involved, in addition to these jurisdictions, the judge of the residence of the minors can also be chosen by the claimant as the divorce ruling also affects them with regards to visitation and child support.
If it is necessary to resort to subsidiary courts as neither of the parties of the divorce reside in Spain, we would turn to the place of enforcement (for example the place where the property is found if we want to collect child support) or the place where the ruling is to take effect.
One of the most common scenarios in case-law comes about when the divorce is only sought to be registered in a Spanish Register and neither of the Parties reside in Spain.
In this case, jurisdiction will lie with the Judge in the place where the Register, in which the marriage is registered, is found, and jurisdiction will lie with the Courts of Madrid in the common scenario that the marriage is registered in the Central Civil Registry.
In this regard, see ruling of the Supreme Court of 15 February 2017, which says: “From the content of the divorce ruling and the content of the request itself it can be deduced that the divorce ruling was only sought to be registered in the Central Civil Registry, which would strengthen the jurisdiction of the court of Madrid regarding the place where the effects of the ruling would be rolled out as it is the headquarters of the aforementioned register”.
Ultimately, if none of the above criteria are applicable, it is the Court of First Instance before which the exequatur request is filed that is competent.
By way of conclusion, it should be pointed out that if the exequatur procedure is initiated and the party subsequently changes their residence and changes it to one abroad, the judge who is hearing the exequatur maintains his competence in application of the principle of “perpetuatio jurisdictionis”.
In this regard, see ruling of the Supreme Court of 16 December 2015.
When we talk about partially-recognised situations within the international field we are referring to situations that are valid in one State, but that may not be valid in others where the matter has relevant ties.
For example, we could state the case of simple foreign adoptions, which establish legal ties between the adopter and the adoptee, but do not break the ties with the biological family. Therefore, the minor would be considered as having been adopted in his/her country of origin but, for example in Spain, he/she would only be considered as having been fostered, and the adoption would not be recognised in this country.
The following would also be considered as a partially-recognised situation: the marriage of two women in Spain, one of Spanish-Colombian descent (B) and one of French-Colombian descent (J).
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They have had a son in Spain with the genetic material of only one of them (B) and they have both registered the minor in Spain.
Therefore, in Spain they are married and they are both mothers to a child.
Shortly after their marriage they all move to France, a country where homosexual marriage is recognised but not the parentage of both mothers.
They then move to Colombia where, at the time that they establish their residence, neither homosexual marriage nor homosexual parentage is recognised so, for the Colombian authorities, the biological mother (B) is the only single mother of the child.
As the result of a marital crisis, J decides to divorce B, and exercise her rights over the minor to have a relationship with him and, at least, to enjoy visitation rights, along with paying for child support. But, where can they do this?
This is a real case
This seems like a fictitious case, but it is not: it is the real case of an extremely difficult to resolve partially-recognised situation. Legally, the only courts that are competent to hear the case are the Colombian courts, because the whole family, the wives and the minor, now live in Colombia.
The Colombian courts will not resolve the situation for the simple reason that everything done by these women abroad is deemed contrary to the public order in Colombia. Is this situation therefore impossible to resolve?
The Spanish courts would not be competent according to the regulations applicable to international jurisdiction. In the case of the divorce, because neither of the wives lives in Spain and they are not both Spanish and, in the case of the minor, because he does not live in Spain.
However, in this case I understand that the jurisdiction of the Spanish Courts may be invoked, by virtue of what is known in private international Law as a “forum of necessity”, given that, if the case is not heard by the Spanish courts, which are the only ones that admit the full situation, i.e., the marriage between the women and their joint parentage, none of the other courts involved can do so as it infringes upon their public order. Therefore, if the Spanish courts refuse jurisdiction, they would be violating article 24 of the Spanish Constitution, which guarantees effective judicial protection, thus denying justice to the parties involved.
Another matter would be recognising the judgment passed in Spain in Colombia.
The Colombian public order would prevent the recognition of such a judgment. Therefore, if the family continues to live in this country, they would continue to be faced with the same situation as described above.
But, what if the family lived in France and wanted to have the judgment passed in Spain, which establishes parent-child measures in relation to the minor, recognised in that country?
Article 23.1 of Regulation EU 2201/2003, which is the applicable instrument for the recognition of judgments in matrimonial matters and in matters of parental responsibility (Brussels II bis), literally states as grounds for refusal of the recognition that judgments from a Member State will not be recognised: “if the recognition is clearly contrary to the public order of the requested Member State, taking into account the best interests of the minor”.
In this case, it is doubtful that the French authorities would refuse to recognise this Spanish judgment, even though homosexual parentage is contrary to their public order, as such grounds for non-recognition can only be applied when in the best interests of the minor.
There is no doubt that it is in the child’s best interests to have a relationship with both of his mothers, and receive financial support from both.
In conclusion, we can state that in international family matters, with such differing regulations in the different countries of the world on situations such as marriage and homosexual parentage, surrogate parenthood, and the different types of adoption, partially-recognised situations, which are extremely detrimental to those involved, will surely increase.