International Divorce: Why Applying the Right Legal Rule Matters
Family law is often associated with very personal and human situations: divorce, children, maintenance, custody, the family home or parental relationships.
However, behind those personal situations there is often a complex legal structure. And that complexity increases significantly when the case has an international element.
✔️One spouse may live in Spain and the other in Japan.
✔️One parent may reside in the United Kingdom.
✔️The children may be living in another country.
✔️There may be different nationalities involved.
✔️There may already be proceedings in another jurisdiction.
✔️Or a Spanish judgment may need to produce legal effects abroad.
In these cases, family law is no longer only a matter of the Spanish Civil Code or the Spanish Civil Procedure Act. Private International Law, European Regulations, international conventions and, where appropriate, Spanish domestic law may all come into play.
This is where specialisation is no longer simply an advantage. It becomes essential.
It is not enough to know family law: it is necessary to know which rule applies first
One of the most delicate issues in international family proceedings is determining which courts have jurisdiction.
At first sight, the question may seem simple: can the Spanish courts hear the case?
But the answer is not always found in the Spanish Organic Law on the Judiciary, known as the LOPJ.
In international matters, the system of legal sources requires us to check first whether there is an applicable European Union Regulation. Then, whether there is a relevant international convention. Only in the absence of those rules, or where those rules themselves refer to domestic law, should Spanish internal law be applied.
This order is not merely academic. It may determine whether proceedings can continue in Spain or whether they are dismissed. It may affect litigation strategy, timing, appeals and the possibility of enforcing a judgment in another country.
A recent example: Spain, Japan and international jurisdiction
The Spanish Association of Family Lawyers recently published a very interesting legal article on the system of sources in Private International Law in matters of international jurisdiction.
The article analyses, among other decisions, the Order of the Provincial Court of Valladolid, Section 1, no. 07/2026, of 13 January, ECLI:ES:APVA:2026:7A. The case concerned divorce proceedings with parental responsibility and maintenance measures. It had a clear international element: a Spanish husband resident in Spain and a Japanese wife resident in Japan, where the child was also living.
The court ultimately declared that the Spanish courts had jurisdiction. However, the legally relevant point was not only the outcome, but the reasoning used to reach it.
The doctrinal commentary highlighted that jurisdiction for the divorce should have been analysed under Regulation (EU) 2019/1111, rather than directly under the LOPJ.
This distinction is essential.
Where an EU Regulation is applicable, we cannot simply move directly to Spanish domestic law merely because the other country involved is not a Member State of the European Union. That is precisely one of the most common misunderstandings in practice.
The fact that the other country is not in the EU does not mean that EU Regulations are irrelevant
This point is particularly important for international families.
Sometimes it is assumed that, if the other State involved is Japan, the United States, the United Kingdom after Brexit, or any other third State, EU Regulations are no longer relevant.
That assumption may be wrong.
EU Regulations do not apply only when all countries involved are Member States. In many cases, they operate as rules of international jurisdiction that Spanish courts must apply in order to determine their own jurisdiction.
Put simply: the question is not only whether the other country belongs to the European Union. The correct question is whether a Spanish court, as a court of a Member State, must apply an EU rule to determine its own jurisdiction.
Very often, the answer will be yes.
Divorce, parental responsibility and maintenance do not always follow the same rule
Another common mistake is to treat an international family case as if everything could be resolved by applying a single rule.
But the same case may involve several different legal matters:
- divorce;
- parental responsibility;
- measures concerning children;
- child maintenance;
- use of the family home;
- international lis pendens;
- recognition and enforcement of judgments.
Each of these issues may be subject to different rules.
In the case discussed, the analysis distinguished between jurisdiction for divorce, jurisdiction for parental responsibility and jurisdiction for maintenance. That distinction is fundamental.
Jurisdiction for divorce could be determined by Regulation (EU) 2019/1111. Parental responsibility required a separate analysis, particularly if no Member State had jurisdiction and it was necessary to look at national law by reference from the Regulation itself. Maintenance had to be examined in the light of Regulation (EC) 4/2009, not simply as an automatic consequence of the LOPJ.
This type of technical analysis is precisely what international family law requires.
The LOPJ (Ley Orgánica del Poder Judicial) does not disappear, but it is not always the starting point
The Spanish Organic Law on the Judiciary remains an important rule. But in international matters, it is not always the first rule to apply.
In some cases, it operates residually. In others, it applies because an EU rule refers to national law. And in other cases, it is displaced by an applicable European Regulation or international convention.
That is why it is not enough to say: “we apply the LOPJ”.
Before doing so, we need to ask:
✔️Is there an applicable EU Regulation?
✔️Is there an international convention?
✔️Does the EU rule displace the domestic rule?
✔️Does the EU rule allow recourse to national law?
✔️Are we dealing with divorce, parental responsibility or maintenance?
✔️Are there proceedings already pending in another country?
✔️Will the Spanish judgment be recognised or enforceable abroad?
These questions are not theoretical. They are litigation strategy.
Specialisation prevents mistakes that can be very costly
In international family law, an error in identifying the applicable rule may have serious consequences.
It may lead to an international jurisdiction challenge.
It may delay the proceedings.
It may make an appeal necessary.
It may create legal uncertainty.
It may make enforcement of a judgment abroad more difficult.
It may even lead to the dismissal of the proceedings if the Spanish courts are found to lack jurisdiction.
And in family law, these are not merely procedural issues.
They affect children, maintenance, time spent with each parent, financial stability, parental decisions and deeply sensitive personal relationships.
That is why an international family lawyer must carry out rigorous preliminary work. Before filing a claim, it is necessary to analyse not only the facts, but also the international legal architecture of the case.
A matter of technique, but also of responsibility
Private International Law is complex. Its rules are not always intuitive. Precisely for that reason, those of us who practise family law have a responsibility to present these cases correctly from the outset.
A specialist lawyer must help the court identify the applicable rules, distinguish between different legal matters, organise the system of sources and explain why a European Regulation, an international convention or a domestic rule should prevail in each case.
A well-prepared claim does not only tell a family story. It also builds the correct legal foundation that allows the court to decide.
Conclusion
International divorce requires sensitivity, but also technical precision.
It is not enough to know that one person lives in Spain and another lives abroad. It is necessary to analyse which EU Regulation applies, whether there is an international convention, when the LOPJ comes into play and what procedural consequences each decision may have.
The difference between applying one rule or another can change the entire course of the proceedings.
At Bennet & Rey Abogados, we advise national and international clients in family law matters with cross-border elements: international divorce, parental responsibility, maintenance, proceedings involving the United Kingdom, the United States, EU countries and third States.
Because in international family matters, choosing the right legal strategy from the outset can make a decisive difference.
If you have any questions or want to contact with us, please send us an email: [email protected]
