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.
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