9 Which is the competent authority to turn to in cases of disputes and other legal issues?
For all legal actions brought, judgments given and acts issued until 28 January 2019, the Spanish courts have international jurisdiction for such proceedings if one of the spouses/partners is of Spanish nationality or has his/her habitual residence in Spain (Art. 50-60 LEC). Both subject-matter jurisdiction and local jurisdiction belong to the court of the district in which the spouses/partners had their last common habitual residence or, subsidiarily, to the court of the district in which the defendant has his/her habitual residence.
There are also specific regulations for cases in which there is no international jurisdiction (Art. 36 LEC).
For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.
This Regulation provides that the competent authorities will be as follows:
- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
- of the spouses’ common habitual residence at the time the court is seised; or failing that
- of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
- of the habitual residence of the respondent; or failing that
- of the spouses’ common nationality.
With the exception of any litigation, notaries – which in Spain have been appointed by their Member State as a court within the meaning of Article 3.2 – are bound by these rules of jurisdiction but still may act freely in drafting a marriage contract or a choice of law agreement.
