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International couples, a year without rules in Spain
Feb 10, 2020

On 29 January 2019, Council Regulations (EU) Nos 2016/1103 and 2006/1104 of 24 June 2019 establishing a regime of enhanced cooperation in the fields of jurisdiction, applicable law, recognition and enforcement of decisions in matters concerning matrimonial property regimes and the property consequences of registered partnerships entered into full application. (Regulations Couples). Nineteen countries participate in the enhanced cooperation: Austria, Belgium, Bulgaria, Czech Republic, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain, Sweden and Spain.

The Regulations Couples have a close link with Regulation (EU) No 650/2012. Successions and with the regulations governing aspects of the couple's crisis, on the basis of the applicable law: Rome III (R. (EU) No 1259/2010 - in enhanced cooperation without full overlapping of participating States - and jurisdiction (also for nullity) Brussels IIa (now Recast, R. (EU) No 2019/1111, in application from 1 August 2022). There is therefore a variable geometry with regard to cooperation in family law matters.

The R.  Couples simplify provisions on private international law in a single instrument. This facilitates procedures, giving predictability and legal certainty to the property relations of international couples. This is the case for jurisdiction, applicable law, recognition and jurisdiction, authentic instruments (acceptance and enforcement) and transactions (enforcement) despite the strong link to the national legal tradition in family and inheritance law.

An undefined cross-border element, whether subjective, objective or by limited choice by the partner, is required for its application. As the Regulation Successions do not address the assumptions of internationality.

The Regulations couples present two major problems for Spain that need to be resolved in regulatory terms.

First and foremost is the lack of national legislation regulating registered partnerships, essentially in terms of their effects vis-à-vis third parties.

The determination of the conflict rule being fixed, ab initio This fixation is provisional, as it can be modified by agreement or by a decision of the judge, if requested, in the cases in which the relationship continuously presents a closer link with a different legislation than the one initially foreseen, so that it is only definitive at the end of the relationship (due to death or crisis of the couple).

Changes either to the applicable law or to the specific regulatory system that it allows may not be detrimental to a third party. Nor may the system of property law be invoked against a third party in litigation during the relationship, except under certain conditions.

If it is difficult to protect third parties if there is coordinated registry publicity for marriages - the entry into force of the Civil Registry Act 20/2011 is essential - what can we say about registered partnerships?

In Spain, there is no national legal concept of the registered partnership. Although the Munich Convention was signed by Spain in the area of ICCS, it is not in force, so there is no national regulation on the registration of partners (second major problem).

The six Autonomous Communities with civil capacity regulate the effects of civil partnerships and their registration. And the remaining 11 Autonomous Communities without civil capacity regulate the registration of partnerships with administrative effects. It should be remembered that the Law on the Bases of the Local Regime was amended by Law 27/2013, of 27 December.

The modification, among others, of Articles 25 and 28, implies the impossibility of the competence of the local councils, and it is up to the Autonomous Community to develop them. Therefore, it is necessary to unify the regime of registered partnerships (state, coordinating and regulating) and access to the Civil Registry of these couples, as the only way to provide civil publicity and effect against third parties of the legal or conventional regime of registered partnerships.

A no lesser problem is the inter-regional system. Spain -even with absolute majority governments- has given up on updating our system of inter-regional law, (law 26/2019 merely patched it up) which has given rise to the present Kafkaesque situation in relation to registered partnerships. Not only, there is no conflict rule ad intra or ad extraThere is neither a substantive rule, nor a rule of necessary application, nor therefore a reference for international public policy in relation to registered partnerships, including in general for unmarried couples.

This incomprehensible and unacceptable regulatory vacuum has found an unexpected travelling companion. The entry into application of Regulation (EU) No. 2016/1191 on 16 February 2019 facilitating the free movement of citizens by simplifying the requirements for the presentation of certain public documents in the European Union and amending Regulation (EU) No. 1024/2012 (Internal Market Information, for which the D.G. Registros y Notariado is the central authority) has created a situation of confusion.

Indeed, the scope of the Regulation includes in its scope of application (Art. 2) 'the registered partnership, including the capacity to register as a member of a registered partnership and the status of a member of a registered partnership; the cancellation of the registration of a registered partnership, the judicial separation or the annulment of a registered partnership'.

Who certifies these facts so that they have international effect? As far as we have seen, the IMI Authorities of the Autonomous Communities, whether or not they have civil regulatory capacity. Therefore, the situation arises, obliged by the Regulation - which has not been implemented by any rule either - that an administrative body will certify to a Member State - all of them are in this Regulation, except Denmark - that an administratively registered couple is in the situations indicated. It should be hastened to point out that these circumstances are preliminary to the Regulations (and capacity is excluded, Art. 1.2 a) recital 17, in both Regulations) but they certainly provide a legal basis on which the applicable law can be based. It should not go beyond the test of the couple's habitual residence which is already very important in this context.

Enhanced cooperation requires Spain to fulfil its commitment to the correct national implementation of European legislation and should be a priority task for our new government.