Marriage contracted abroad between a Spanish citizen and a foreign national. The couple’s last family residence was in Spain, and the Spanish spouse resides here. Is it possible to divorce by mutual agreement through powers of attorney before a notary?
The judicial authorities of Spain have jurisdiction over the divorce. This is established by Brussels IIbis Regulation, Article 3(a) on general jurisdiction (Council Regulation (EC) No 2201/2003 of 27 November 2003, on jurisdiction, recognition, and enforcement of judgments in matrimonial matters and parental responsibility, repealing Regulation (EC) No 1347/2000).
“Judicial authority” is understood to include notaries. However, according to the most recent doctrine from the Directorate of Registries and Notaries, a divorce executed in a public deed is a personal act of the spouses and cannot be performed by proxy. Article 82, second paragraph of the Spanish Civil Code states:
“The spouses must personally participate in the granting of the act, without prejudice to being assisted by a practicing lawyer, giving their consent before the judicial secretary or notary. Likewise, adult or emancipated children must give their consent before the judicial secretary or notary regarding measures that affect them, as they lack their own income and live in the family home.”
Therefore, the personal and simultaneous appearance of both spouses is required.
