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Where should a divorce claim be filed where the parties are not spanish citizens or residents?

Civil Law

Francisco Garcia Ramirez

7th of November 1999

Q. I understand that if an American couple living in Spain wants to divorce, only one member of the couple has to be resident in Spain; however, can the member of the couple who does not have residence file for the divorce, or does it have to be the member of the couple who is a Spanish resident who files the divorce papers?

Anonymous

    A. The 1985 LOPJ establishes the following points of connection in order for the Courts to have jurisdictional authority:

    • Defendant is resident in Spain
    • Both parties are residents in Spain
    • Plaintiff is Spanish and resident in Spain
    • Both parties are Spanish regardless of country of residence

    If the defendant is non-resident, the Courts are more likely than not to order a stay of proceedings (save point of connection three). A Spanish Supreme Court ruling (auto TS 3 Feb.1.986) denied competence to Spanish tribunals where the defendant was a resident in the United States.

    However, both parties are free to choose the Spanish jurisdiction to decide a matter of divorce, either by expressly agreeing the submission or one party filing for divorce and the other party tacitly accepting the competence of Spanish tribunals.



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