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Escritos por Yolanda Dutrey

¿Cómo es la competencia judicial internacional en la modificación de medidas en materia de menores?

Las medidas definitivas relacionadas con los hijos menores, adoptadas por el juez tras un divorcio o separación, pueden ser modificadas en caso de que las circunstancias que conciernen a los hijos se vean modificadas sustancialmente. Yolanda Dutrey nos explica, en este artículo, qué dice la legislación al respecto. Leer artículo

What is the exequatur and how is its territorial jurisdiction established?

The exequatur is a procedure regarding the approval of judgments rendered by foreign judges by means of which it is sought that they take effect in Spain. At present, it is regulated by Law 29/2015, of 30 July, on international legal cooperation (LCJIC) which repeals Articles 951 and thereafter of the Spanish Civil Procedure Law (LEC).

The request to initiate the exequatur procedure is to be adapted to the requirements of Article 399 of the Civil Procedure Law (Article 54.4 of the LCJIC) and will have to be filed at one of the courts indicated in Article 52.1 of the LCJIC.

Said Article 52.1 states: “The jurisdiction to hear exequatur requests lies with the Courts of First Instance in the residence of the party regarding whom recognition or enforcement is being requested, or of the person to whom the effects of the foreign legal ruling refer. Subsidiarily, territorial jurisdiction shall be determined by the place of enforcement or by the place where the ruling must take effect, whereby the Court of First Instance before which the exequatur procedure is filed is that which is ultimately competent”.

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Regarding exequatur requests when the parties reside in different places in Spain, negative conflicts of jurisdiction have, on occasions, arisen. The ruling of the Supreme Court of 1 March 2017 addresses this issue:

In this scenario settled by said ruling, the exequatur of a divorce ruling rendered in Morocco is requested.

The claimant resides in Gavá and the defendant in Alicante.

The plaintiff (ex-wife) files a request for exequatur in Gavá, her place of residence. The Court of First Instance of Gavá declared its lack of territorial jurisdiction as the residence of the defendant was in Alicante.

The Court of Alicante then rejected the inhibition and the Supreme Court went on to resolve the negative conflict of jurisdiction in the sense that the divorce ruling must take effect for both parties and that, therefore, if the claimant files the claim in his/her residence, this is a territorially competent jurisdiction to hear the exequatur.

Thus, given that the effects of the foreign divorce ruling affect both parties, the jurisdiction may lie with both that of the residence of the claimant and that of the defendant, with no preference between one or the other, as the legislator does not indicate the subsidiary nature of any of them. Courts are alternative and, thus, the claimant can choose.

This interpretation by the Supreme Court is nothing new, but rather a constant position in our courts that already existed in the application of Article 955 LEC (currently repealed) which practically had the same wording as Article 52.1 LCJIC.

In this regard, see ruling of the Supreme Court of 25 May 2016.

And what if there are minors involved?

If minors are involved, in addition to these jurisdictions, the judge of the residence of the minors can also be chosen by the claimant as the divorce ruling also affects them with regards to visitation and child support.

If it is necessary to resort to subsidiary courts as neither of the parties of the divorce reside in Spain, we would turn to the place of enforcement (for example the place where the property is found if we want to collect child support) or the place where the ruling is to take effect.

One of the most common scenarios in case-law comes about when the divorce is only sought to be registered in a Spanish Register and neither of the Parties reside in Spain.

In this case, jurisdiction will lie with the Judge in the place where the Register, in which the marriage is registered, is found, and jurisdiction will lie with the Courts of Madrid in the common scenario that the marriage is registered in the Central Civil Registry.

In this regard, see ruling of the Supreme Court of 15 February 2017, which says: “From the content of the divorce ruling and the content of the request itself it can be deduced that the divorce ruling was only sought to be registered in the Central Civil Registry, which would strengthen the jurisdiction of the court of Madrid regarding the place where the effects of the ruling would be rolled out as it is the headquarters of the aforementioned register”.

Ultimately, if none of the above criteria are applicable, it is the Court of First Instance before which the exequatur request is filed that is competent.

By way of conclusion, it should be pointed out that if the exequatur procedure is initiated and the party subsequently changes their residence and changes it to one abroad, the judge who is hearing the exequatur maintains his competence in application of the principle of “perpetuatio jurisdictionis”.

In this regard, see ruling of the Supreme Court of 16 December 2015.

¿Qué es el exequator y cómo se establece su competencia territorial?

En ocasiones, sentencias dictadas en el extranjero deben tener aplicación práctica en España. Para ello, tienen que homologarse a través de un procedimiento jurídico denominado exequator. El problema añadido surge, en ocasiones, por la competencia territorial.
Yolanda Dutrey nos explica, en este artículo, qué dicen la legislación y la jurisprudencia al respecto. Leer artículo

Is regulation of surrogate motherhood coming closer and closer?

On 3 April 2016 we already published an article in this same magazine about the need for legal regulation of surrogate motherhood in our country. The subject seems to be coming up again with renewed force in the new legislature and we hope that at last some law will see the light that protects everyone’s rights, both of the gestating mothers and the families that wish to have children and, of course, those children.

The attempts to contain surrogate motherhood in Spain have been overtaken by international realities, since many foreign countries allow this technique, which has then been logically taken advantage of by Spanish citizens to have their children outside our borders. There are more than a few places where surrogate motherhood is legal and many of them are countries close to us where the question of protecting the rights of the parties participating is not put up for question.

This practice of having recourse to surrogate motherhood abroad has become something that is not only frequent, as we have already mentioned, but it has also been regulated since 2010 when the DGRN Instruction of 5 October 2010 was issued on the filiation registry system for substitute gestation babies, a regulation that makes registration of the filiation in the Spanish Civil Registry, provided that the authorities confirm that the required guarantees have been met in the foreign country involved.

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This Resolution could be a starting point for drafting a new law since what it does is to establish some minimum requirements for surrogate motherhood abroad to be recognised in Spain. Proceeding on the basis of the conditions required for practices abroad, they should also be required if the technique takes place in Spanish territory.

Some of the requirements of this new Instruction could easily be incorporated into the new law, such as, for example, that the parties have to carry out everything through a court procedure in which a ruling is handed down determining the filiation of the newborn child, that all procedural rights of the parties are safeguarded, particularly those of the birth mother, whose consent must be free and informed, guaranteeing this through some public authority, and that the consent given should be irrevocable.

In regard to the child’s best interests, this should be the guiding principle throughout the law, which is also in accordance with the case law of the European Court of Human Rights on the subject, and it would be necessary to ensure the right of the minor to enjoy a unique identity, as proclaimed by the ECHR.

These are some of the legal requirements that such a law should incorporate, since the aim is definitely to ensure that the rights of all the parties involved are safeguarded. Some additional questions could be added, such as the need for residence in Spain if the desire is not tot to attract people from surrounding countries or others for economic reasons that, in one way or another, would necessarily have an influence. A comparative study of the laws in our surrounding environment might be useful.

It seems that, in these or other terms, the regulation of surrogate motherhood will see the light and with that we can hope for protection of the minors, the birth mothers, and of all the values in play with this technique.

 

La regulación de la maternidad subrogada, cada vez más cerca

En este artículo, Yolanda Dutrey nos recuerda la necesidad de una ley que regule, en España, la maternidad subrogada. La falta de regulación, empuja a quienes desean ser padres a buscar soluciones en otros países. Leer artículo