SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
2.9 ADR in Financial Matters Parties can resolve their financial disputes by signing an agreement or liquidating their matrimonial property before a public notary. The notary deed will have the same effects as a court order. Since April 2025 it is mandatory to try ADR methods before filing a divorce or parental responsibility peti ‑ tion at court. Courts always offer the parties the option to stay the divorce proceedings to attend mediation. There are family mediators, arbitrators and collabora ‑ tive lawyers. An agreement reached via a non-court process is a private contract between the parties, and for it to be enforceable, it must be included in a consent court order. Council Regulation (EC) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) is the applicable law on jurisdiction in Spain regarding parental responsibility. Article 7 of Council Regulation No 2019/1111 rules that the member state’s courts where the child is habitually resident at the time the court is seised shall have international jurisdiction for parental respon ‑ sibility and childcare arrangements. Spain will have jurisdiction for bringing children proceedings when the children are habitual residents in Spain when the court is seised. Article 10 of Council Regulation No 2019/1111 rules the choice of court by the parents, and sets out the following. 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
“1. The courts of a Member State shall have jurisdic ‑ tion in matters of parental responsibility where the fol ‑ lowing conditions are met: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that: (i) at least one of the holders of parental responsibility is habitually resident in that Member State; (ii) that Member State is the former habitual residence of the child; or (iii) the child is a national of that Member State; (b) the parties, as well as any other holder of parental responsibility, have: (i) agreed freely upon the jurisdiction, at the latest at the time the court is seised; or (ii) expressly accepted the jurisdiction in the course of the proceedings, and the court has ensured that all the parties are informed of their right not to accept the jurisdiction; and (c) the exercise of jurisdiction is in the best interests of the child.” The applicable law on international jurisdiction in maintenance obligations is European Council Regu ‑ lation (EC) No 4/2009 of 18 December 2008 on main ‑ tenance obligations. According to Article 3 (b), Spain would have jurisdiction for child maintenance when the child has a habitual residence in Spain. The most relevant concept for determining jurisdiction in children matters is the child’s habitual residence at the time the court is seised. In the case of Articles 10 and 12 of Council Regulation (EC) No 2019/1111, the nationality of the child can be a factor in prov ‑ ing a special connection of the child with that state for an agreement between the parents on the choice of court or a transfer of jurisdiction to the court of another member state.
233 CHAMBERS.COM
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