Serafín vs. Santiaga.Roj: AAP B 3230/2009 - ECLI:ES:APB:2009:3230A
Details of the court
Spain, Second Instance
Articles referred to by the court
Brussels IIa
Article 3
Paragraph 1
SubParagraph a
Indent 1
Paragraph 1
SubParagraph a
Indent 2
Paragraph 1
SubParagraph a
Indent 3
Paragraph 1
SubParagraph a
Indent 4
Paragraph 1
SubParagraph a
Indent 5
Paragraph 1
SubParagraph a
Indent 6
Article 7
Paragraph 1
Paragraph 2
Date of the judgement
16 April 2009
Appeal history
None
CJEU's case law cited by the court
None
Summary
Conflict of jurisdiction raised before Spanish courts and resolved on the basis of Brussels II a Regulation provisions.
Key facts: Divorce case transacted in Spain. One of the parties alleges that there are judicial divorce proceedings already initiated in Peru. A first instance Spanish court decided that the court was not competent to decide on the divorce. The court based its judgement only on the application of national law.
Court decision: the court points out that the application of national law is residual since the entry into force in Spain of Brussels II a Regulation (art. 7 of that Regulation).
Spanish courts are competent to decide on the case according to art. 3.1 a) (habitual residence of the plaintiff in Spain for more than one year before he brought the divorce action before justice). The existence of divorce proceedings started in Peru was irrelevant at that stage.
The court applies general rules on jurisdiction in matters relating to divorce, legal separation or marriage annulment. The court took into account Brussels II a Regulation provisions on jurisdiction that shall lie with the courts of the Member State in whose territory the applicant is habitually resident if he or she resided
there for at least a year immediately before the
application was made.
Appeal history (not available in the database):
Court decision: el Juzgado de Primera Instancia núm. 45 de Barcelona. (Spain) (First instance)
Date:14-04-2008