91 350 28 42email hidden; JavaScript is required

Artículos

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).

Principio del formulario

Final del formulario

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.

Flora Calvo

Flora Calvo es licenciada y doctora en Derecho por la Universidad Complutense de Madrid y diplomada en Derecho francés por la Universidad de París XI Jean Monnet Sceaux. En la actualidad es miembro del despacho Winkels Abogados y profesora del área de Derecho internacional privado de la Universidad Rey Juan Carlos de Madrid.

Calvo colabora en multitud de publicaciones y cuenta con numerosos artículos publicados en revistas como ‘La Ley’, ‘Otrosí’, ‘Sepín‘ e ‘Iuris’.

Ver todos los artículos del autor

Si tiene alguna duda o consulta sobre cualquier cuestión planteada en este artículo, puede contactar con el autor usando el siguiente formulario:

  • Este campo es un campo de validación y debe quedar sin cambios.