In today’s post we comment on a recent and interesting judgment in which a frequent doubt in the case of international marriages is answered: is it necessary to register the marriage in the Civil Registry in order to divorce? In this specific case, it is an international marriage in which one of the parties is of Israeli nationality and the other of German nationality, both residing in Spain.
There is a debate as to whether the fact of not having provided the certification that the marriage is registered in the consular and/or central Civil Registry in Spain can be a reason to deny the party the corresponding declaration of divorce.
And the answer, in this case, is negative.
If you need help in any legal matter related to international family law, please contact our team of family lawyers in Barcelona.
On the need to register the marriage at the Civil Registry in order to be able to get divorced
The sentence, issued by the Court of First Instance No. 6 of Malaga, assures that, in particular, to the extent that both parties have proof of the marriage, and although it is not registered in any Spanish Civil Registry (because the registration is still in process), “it must be considered that the registration is not a requirement of validity for the marriage, but only constitutes a requirement of publicity, especially with respect to third parties“.
Thus, the law of the State of Israel must be followed for the declaration of the validity of the marriage, and, in any case, the judgment recalls that “our Civil Code provides in Article 61, that the marriage produces civil effects from the moment of its celebration.
Therefore, from that moment, and once the requirements for divorce are met, either of the parties may request a divorce.
Furthermore, in this case, a certificate of the marriage, contracted in Israel, duly translated and with apostille, was provided, which makes it a valid document for the processing of the divorce.
Thus, and in order to establish the requirements for the divorce at the documentary level, the sentence summarizes that, although the marriage is not yet registered in the Central Civil Registry or Consular, it is appropriate to resolve the divorce action because:
- The registration in the Spanish Civil Registry is not a requirement of validity for the marriage, but only constitutes a requirement of publicity with respect to third parties.
- It is the celebration that gives effect to the marriage (Article 61 CC).
- The full effects (i.e., before third parties) come from its registration.
Another key point of the judgment is to decide which law is applicable to process the divorce, remembering that it will be the Spanish law “when the common residence of both litigants is in this country when the lawsuit is filed”, as stated in Article 8 of Regulation (EU) No. 1259/2010 of December 20, 2010 on enhanced cooperation.
It should be recalled that this Regulation is universally applicable, even if Israel is not a signatory State.
Regarding the matrimonial property regime, the law of the State of the first common habitual residence of the spouses applies, after the conclusion of the marriage, according to Article 26 of Regulation (EU) 1103/2016 of 24 June 2016 on enhanced cooperation in the area of jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes.
The judgment asserts the following:
The spouses have always resided in the city of Malaga, so that they only traveled to Israel for the celebration of the religious rite of marriage, so it is clear that Spanish law is applicable, and therefore, since the spouses have not entered into marriage contracts, the matrimonial property regime is that of the community of property.
Regarding child custody, this judgment is a good example of the limits of joint custody in cases where the role of one of the parents is null or almost null.:
The custody has to be attributed to the mother, since it is clear from the proceedings that it has been the mother who has been taking care of the children, and it cannot be deduced from the proceedings that the father has not been involved in such matters, except once the proceedings of the present proceeding have been initiated.
The shared custody requested by the father is not beneficial for the children, who, due to their age, are linked to and dependent on the main figure of care, which is the mother, so that the shared custody requested, in addition, on a weekly basis, will not be beneficial for the children, since it implies a drastic change in the life of the children, taking them away from their routines and their main caregiver, and furthermore, it is not good for children of [edad no especificada en la sentencia] and 1 year to be separated from each of their parents for a period of one week, in particular, and in this case, with respect to the mother.
Consult our family lawyers in Barcelona: we will be happy to help you in your case..
