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Escritos por Yolanda Dutrey

¿De qué país es la ley aplicable cuando un padre español residente en Suiza hace una reclamación de filiación?

Competencia de los Tribunales españoles en un Procedimiento de Filiación con elemento extranjero.

Nuestra compañera Yolanda Dutrey lo desarrolla en este artículo.

Continuar leyendo.

Does the amendment of a foreign judgment require an exequatur first?

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.

This article can be found at . What are the rules on international jurisdiction regarding the amendment of measures in relation to minors?

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.

 

La residencia en España, a efectos de la aplicación del Reglamento Bruselas II, según el Supremo

La residencia en España, a efectos de la aplicación del Reglamento de Bruselas II, según el Supremo. Columna de Yolanda Dutrey.

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¿Son competentes los jueces españoles en materia de menores y alimentos aunque el hijo no resida en España?

La residencia habitual del menor no es el único foro competente. Yolanda Dutrey, nuestra querida compañera, desarrolla los requisitos en el artículo de esta semana.

Continuar leyendo.

 

What purpose does international jurisdiction serve in the amendment of measures concerning minors?

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?

Principio del formulario

Final del formulario

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:

  1. 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).

  1. 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.