Summary
In case of lis pendens within the meaning of Article 19 of Regulation (EC) No 2201/2003 between a divorce action brought in Spain and an action for legal separation brought in Italy, Spanish courts (rather than Italian courts) have jurisdiction if they have granted the relevant claim through a provisional judgment (regardless of the subsequent service thereof) prior to the lodging of the claim in Italy. A Spanish judgment that has granted divorce without a previous period of personal separation is not in contrast with public policy within the meaning of Article 22 of Regulation (EC) No 2201/2003. A Spanish divorce judgment that has been rendered in proceedings where the statement of claim has been served to the defendant according to the rules on untraceable persons even though the plaintiff was aware of the defendant’s place of residence in Italy cannot be recognised, since it is in contrast with procedural public policy within the meaning of Article 22(a) of Regulation (EC) No 2201/2003. Moreover, the fact that said judgment has not been appealed by the defendant does not constitute acceptance of a foreign judgment pursuant to Article 22(b) of said Regulation. Given that the Spanish divorce judgment cannot be recognised, Italian courts have jurisdiction over an action for legal separation between the same spouses if, pursuant to Article 3 of Regulation (EC) No 2201/2003, the last habitual residence of the spouses was located in Italy and one of them still resides there.