Exequatur: the need to validate the judgments of foreign courts in Spain
This article makes a brief analysis about the exequatur and the obligation to legalize in Spain judgments issued by foreign courts without limiting its field of study; and by posing some questions that allow the reader an understanding as simple as possible.
I. Can a foreign judicial resolution be approved in Spain?
Article 41 of Law 29/2015, of July 30, on international legal cooperation in civil matters (LCJI), provides for the recognition and enforcement of contentious foreign resolutions, of voluntary jurisdiction, foreign public documents and precautionary and provisional measures in Spain, in the terms provided in this law.
Suppose, for example, two foreigners, residents of Spain, who divorced in their country of origin (not belonging to the European Union and Spain didn’t sign any international agreement or treaty). They arrive divorced in Spain. The mother wants to claim to the father the alimony that he is not paying to his children. She should urge the recognition of the foreign divorce sentence in Spain relapsed in her country of origin through the exequatur. This procedure can be urged with the enforcement of the foreign court decision.
The exequatur can also be used so that a foreign resolution is not recognized because it violates public order.
II. Can any foreign sentence be validated in Spain?
As explained in the previous section, we can use the exequatur to avoidance to recognize a foreign resolution for violating public order.
In this order, Article 46 of the LCJI provides that foreign judicial resolutions contrary to public order can not be recognized; those dictated with manifest violation of the rights of defense; that refers to matters of exclusive competence to the Spanish courts; if it is irreconcilable with a resolution issued in Spain; if it were irreconcilable with another previous resolution issued in another country, compatible in Spain; or in case of lis pendens.
We can see an example in the Supreme Court Judgment, dated November 26, 2015. It was a marriage of Moldova, resident in Spain, with a minor daughter. The wife registered an initial divorce claim in this country. When the husband received the notification of the claim, in Spain, he moved to Moldova and initiated another legal action of divorce in that country. The wife didn’t receive any notification over it the legal procedure in Moldova. So the Moldovan court issued judgment. Later, the husband delivered the foreign resolution in the legal procedure in Spain. He alleged that there was a sentence in Moldova.
However, the Supreme Court rejected the husband's claims and estimated the divorce demand of the wife essentially for two reasons. The first, because the husband had not urged the exequatur procedure. And the second, because the sentence of the courts of the Republic of Moldova (without an agreement signed with Spain and not member of the European Union) violated the public procedural order in Spain. This is because the rights of defense of the wife, declared in procedural rebellion, in the judicial procedure of Moldova were not respected It’s because the Moldova administration of justice didn’t deliver the divorce demand. So, she could not to formulate allegations over it.
III. What would happen if the recognition of the foreign sentence in Spain is not carried out?
The foreign resolution cannot be executed in Spain. Let's suppose that you have a foreign judgment from your country of origin that recognizes a right to receive payment of a debt (for example, € 20,000) against another person or entity that currently resides in Spain, and has equity solvency. If you obtain the exequatur, that is, the recognition of the foreign resolution in Spain, you can execute it in this country and you can obtain the money from that right to receive payment.
The subject matter of the exequatur is very broad (international divorces, child support, collection rights, etc.)
IV. How can a lawyer help a foreign citizen for the recognition of a foreign court ruling in Spain?
Article 54 of Law 29/2015, of July 30, on international legal cooperation in civil matters, requires the intervention of a lawyer and legal representative (Procurador) to promote the exequatur procedure for the recognition and enforcement of foreign judgments in Spain.
A specialized lawyer can help you to analyze your case, for example, foreign judicial resolution, foreign public documents, their characteristics, the subject matter, circumstances of the case, if it is a European Union country, or of a country with which Spain has an international agreement concluded, if there is no treaty, etc.
The recognition and enforcement of judicial decisions of foreign courts in Spain necessarily requires the procedure of Exequatur, which requires the intervention of legal representative and lawyer.
The recognition and enforcement of judicial decisions of foreign courts in Spain can be very useful, when one of the parties has been harmed by serious irregularities in the country of origin where the judgment was issued, and it may not be possible to recognize and execute them, in all or in part.
The recognition and enforcement of judicial decisions is an ideal instrument of international legal and financial planning.
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