A married couple of Danish nationality, married in Denmark and residing in Spain for several years, decides to divorce. What law applies to the divorce and, specifically, to the division of marital property?
International judicial competence falls to the Spanish courts to hear the divorce and, if applicable, the liquidation of the matrimonial property regime, based on Regulation (EU) No 1259/2010 of the Council of 20 December 2010, which establishes enhanced cooperation in the law applicable to divorce and legal separation with universal or erga omnes effect (Article 4). If no choice of law has been made under the terms of Article 5, Spanish law will apply.
Regarding the liquidation of the matrimonial property regime, reference must be made to Articles 9.3 and 9.2 of the Spanish Civil Code. In cases where the spouses have not entered into a prenuptial agreement, the applicable law is the nationality of the spouses at the time of the marriage, in this case, Danish law. Accordingly, foreign law must be proved in accordance with Article 33 of the Spanish Law on International Legal Cooperation.
