SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
2.2 Service and Process in Financial Proceedings
matter relating to maintenance is ancillary to those proceedings. Spain is a party to the Council Regulation (EU) No 2016/1103 of 24 June 2016, which implements enhanced co-operation in the area of jurisdiction, applicable law, and the recognition and enforce ‑ ment of decisions in matters of matrimonial property regimes. This regulation is applicable between mem ‑ ber states as of 29 January 2019. According to this Regulation, jurisdiction in matters of the matrimonial property regime in the event of the death of one of the spouses will be retained by the court of the member state that is ruling the succes ‑ sion of the spouse pursuant to Regulation (EU) No 650/2012 on Succession. Jurisdiction in matters of the matrimonial property regime in cases of divorce, legal separation or annulment will be ruled by the court of the member state that is seised for the divorce, legal separation or annulment pursuant to Regulation (EU) No 2201/2003. Article 22 quáter (c) of the Spanish Law on Judicial Power rules the international jurisdiction of the Span ‑ ish courts in matters of matrimonial property regimes. Spain retains the residual jurisdiction in matters of matrimonial property regimes when: • both parties are habitually resident in Spain at the time the proceedings are issued; • Spain was the last matrimonial habitual residence, and one of the spouses still lives there; and • Spain is the respondent’s habitual residence. It is impossible to apply to stay proceedings to pursue financial proceedings in a foreign jurisdiction. The court can hear financial claims in Spain after a foreign divorce. First, the foreign divorce must be rec ‑ ognised by the Spanish courts. The financial claim must be related to immovable assets situated within the Spanish jurisdiction upon which the foreign judge did not have jurisdiction to rule. It might also consist of liquidating a Spanish property regime before the Spanish courts if it was not decided in the foreign divorce decree. This is not commonplace.
The service requirements in financial proceedings are the same as in any other civil proceedings. Each court’s head of the court administration ( Letrado de la Administración de Justicia ) is responsible for the ser ‑ vice of documents and other acts of communication. After a party has filed a financial petition, the court will admit it and issue financial proceedings, ordering service upon the other party. A court’s agent will serve the other party at their residence in person. Service by a particular method is also possible. The petitioner can request the court that the private court’s clerk ( procurator ) personally serve the divorce petition. As set out in 1.1 Grounds, Timeline, Service and Pro- cess , Spain is a party to the Hague Convention on the service abroad of judicial documents signed on 15 November 1965. A form must be filled out and sent to the Spanish Central Authority with the divorce peti ‑ tion and documents. The Central Authority forwards the document to the Dean Judge ( Juzgado Decano ) of the Courts of First Instance within the judicial ter ‑ ritory ( partido judicial ) where the document is to be served. This court office is competent for distributing the different proceedings (including service of docu ‑ ments) among the judicial authorities that fall under its jurisdiction. Although a different form of service is not prohibited in Spanish domestic law in principle, the Central Author ‑ ity does not usually receive a special request by the applicant for service by a particular method. Between member states of the European Union, Reg ‑ ulation 2020/1784 of 25 November 2020 on the ser ‑ vice in the member states of judicial and extrajudicial documents in civil or commercial matters (recast) is applicable. The financial orders on divorce are spousal, and child maintenance and the use of the matrimonial home must be in the child’s best interests. The proceedings can take about one year for the first-instance court order and another year for the appeal at the Higher Court.
229 CHAMBERS.COM
Powered by FlippingBook