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Un modelo que ha llegado para quedarse

La custodia compartida, introducida en nuestra legislación en 2005, ha propiciado un nuevo modelo de familia. Ésta es la tesis argumentada y defendida por Isabel Winkels en este artículo publicado en la sección A Debate de la revista 21.  34-35 Julio

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.

What is a partially-recognised situation within the international field?

When we talk about partially-recognised situations within the international field we are referring to situations that are valid in one State, but that may not be valid in others where the matter has relevant ties.

For example, we could state the case of simple foreign adoptions, which establish legal ties between the adopter and the adoptee, but do not break the ties with the biological family. Therefore, the minor would be considered as having been adopted in his/her country of origin but, for example in Spain, he/she would only be considered as having been fostered, and the adoption would not be recognised in this country.

The following would also be considered as a partially-recognised situation: the marriage of two women in Spain, one of Spanish-Colombian descent (B) and one of French-Colombian descent (J).

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They have had a son in Spain with the genetic material of only one of them (B) and they have both registered the minor in Spain.

Therefore, in Spain they are married and they are both mothers to a child.

Shortly after their marriage they all move to France, a country where homosexual marriage is recognised but not the parentage of both mothers.

They then move to Colombia where, at the time that they establish their residence, neither homosexual marriage nor homosexual parentage is recognised so, for the Colombian authorities, the biological mother (B) is the only single mother of the child.

As the result of a marital crisis, J decides to divorce B, and exercise her rights over the minor to have a relationship with him and, at least, to enjoy visitation rights, along with paying for child support. But, where can they do this?

This is a real case

This seems like a fictitious case, but it is not: it is the real case of an extremely difficult to resolve partially-recognised situation. Legally, the only courts that are competent to hear the case are the Colombian courts, because the whole family, the wives and the minor, now live in Colombia.

The Colombian courts will not resolve the situation for the simple reason that everything done by these women abroad is deemed contrary to the public order in Colombia.  Is this situation therefore impossible to resolve?

The Spanish courts would not be competent according to the regulations applicable to international jurisdiction. In the case of the divorce, because neither of the wives lives in Spain and they are not both Spanish and, in the case of the minor, because he does not live in Spain.

However, in this case I understand that the jurisdiction of the Spanish Courts may be invoked, by virtue of what is known in private international Law as a «forum of necessity», given that, if the case is not heard by the Spanish courts, which are the only ones that admit the full situation, i.e., the marriage between the women and their joint parentage, none of the other courts involved can do so as it infringes upon their public order. Therefore, if the Spanish courts refuse jurisdiction, they would be violating article 24 of the Spanish Constitution, which guarantees effective judicial protection, thus denying justice to the parties involved.

Another matter would be recognising the judgment passed in Spain in Colombia.

The Colombian public order would prevent the recognition of such a judgment. Therefore, if the family continues to live in this country, they would continue to be faced with the same situation as described above.

But, what if the family lived in France and wanted to have the judgment passed in Spain, which establishes parent-child measures in relation to the minor, recognised in that country?

Article 23.1 of Regulation EU 2201/2003, which is the applicable instrument for the recognition of judgments in matrimonial matters and in matters of parental responsibility (Brussels II bis), literally states as grounds for refusal of the recognition that judgments from a Member State will not be recognised: «if the recognition is clearly contrary to the public order of the requested Member State, taking into account the best interests of the minor».

In this case, it is doubtful that the French authorities would refuse to recognise this Spanish judgment, even though homosexual parentage is contrary to their public order, as such grounds for non-recognition can only be applied when in the best interests of the minor.

There is no doubt that it is in the child’s best interests to have a relationship with both of his mothers, and receive financial support from both.

In conclusion, we can state that in international family matters, with such differing regulations in the different countries of the world on situations such as marriage and homosexual parentage, surrogate parenthood, and the different types of adoption, partially-recognised situations, which are extremely detrimental to those involved, will surely increase.

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.

 

Can there be three biological parents instead of two?

We all have expressions like these in mind: «You’ve only got one mother» and «mater seper certa est» [the mother is always certain], but with recent advances in assisted reproduction, these aphorisms are no longer so true.

In fact, according to Spanish law, maternity is determined by gestation, so the gestating mother is the mother, but what happens when this woman and the biological mother are not the same person?

  1. How the question is posed in Spain

In the case of a couple composed of two women, where one of them gestates the embryo from the egg of the other and sperm from a donor, which of them would be the mother? We can’t deny the status of mother to the one contributing the DNA, the one contributing the egg.

This consideration was taken into account in Article 7.3 of the Assisted Reproduction Act, which allows the filiation of two women in these circumstances:

«When a woman is married to, and not legally or in fact separated from, another women, the latter may declare, in accordance with the provisions of the Civil Registry Act, that she agrees for a determination in her favour of the filiation in regard to the child born from her spouse.»

Therefore, two women may be biological mothers, and therefore both may be recognized as such.

It is not the case here, as it is with men, that one of them may adopt the child of the other and hence become a part by adoption, but rather, in the case of two women, it is a true filiation.

But what happens to the father?

So far no problems have arisen from these filiations since normally the interested parties go to a sperm bank and use sperm from an anonymous donor, but what if the donor wasn’t anonymous?

And what if he wanted to be the father and the mothers consented to such a determination of filiation?

In this case, all of them have a right to paternity: the gestating mother by law and the biological parents due to their DNA. Would it be possible to register three people with the Civil Registry as the minor’s parents?

At the moment, such a registration appears to be nearly impossible in Spain, but it also seemed to be impossible a few years ago for a transsexual to marry someone of their same biological sex or for people of the same sex to get married.

If the matter arose, it would be difficult to find sufficient arguments to deny the filiation of the three people in these circumstances, because who would lose the right?

The last person to request it, or would DNA prevail over gestation or vice versa?

We must admit that these are not easy questions to answer.

  1. Recognition of triple filiations formed abroad

The situation could also arise about recognising these family groups that have been formed in some country where they are already legal.

For the time being, there isn’t any country that recognises them, but there are likely to be some in the future among the countries pioneering these questions, such as The Netherlands or Belgium.

So, if it was the case that one of the mothers was Spanish, and this triple filiation to a child was recognised in The Netherlands, could that decision be recognised in Spain?

In principle it would be impossible, since it is easy to conclude that triple filiation goes against the Spanish legal policy, but if it was not recognised, this would seem to go against two of our essential legal principles: the principle of equality and the principle that requires that the best interests of the child be protected in decisions regarding minors.

In regard to the principle of equality, if the filiation of the minors in regard to the three parents is not respected, which of the three are we to choose?

The child of a Spaniard, as a Spaniard, has the right to be registered with the Civil Registry.

How is this birth to be registered, then?

Are we to discriminate against one of the foreign progenitors, against one of the biological ones, or against the gestating mother?

If we choose the Spanish citizen due to her nationality, we are discriminating against one of the other two for that reason, and if we choose based on reproductive criteria, we are also discriminating against one of them, as would be the case if we do so based on sex.

In the same way, if we do not accept recognition of this triple filiation that has already been validly constituted abroad, we would be negatively affecting the best interest of the minor to have the filiation of their three parents and we would propitiate a situation that is prejudicial to the minor, who would have a valid filiation with three parents, for example, in The Netherlands, and a legal limbo in Spain, due to this filiation not being recognised.

There’s no doubt that there’s a debate already set up here.

Such cases have not yet come before our courts, but it is only a question of time for this to occur, so the legislators had better be prepared to regulate these new situations that reality is posing for us and in regards to which the Law cannot stand aside.