Exequátur (Exequatur) is a set of rules in accordance with which one country checks whether a judicial decision of a foreign state complies with the requirements that enable it to be executed in that country. This procedure is intended to determine the ability to enforce a foreign court decision in the territory of another state.
- If one of the two countries is not a member of the European Union, the recognition and enforcement of judgments between them will be carried out through exequatur. The norm governing the exequatur procedure in Spain is the Civil Law Act of 1881, namely articles 951-958. Although the Civil Law Act of 1881 was repealed by the new Civil Law Act of 2000, Articles 951-958 continue to be in force until the adoption of the Law on International Legal Cooperation.
• If both countries are members of the European Union (with the exception of Denmark), then the recognition and enforcement of judgments will be automatic, and there is no need to resort to an exequatur procedure. Two European Union regulations apply: 1215/2012 for court decisions in civil and commercial matters and 2201/2003 for court decisions in conjugal matters and parental responsibility.
The holder or active subject of exequatur is:
• Any person in whose favour a judgment has been issued;
• Any person to whom a foreign court decision harms or prevents gain.
- Verification of the contract: That is, the availability of relevant contracts with the state that issued the court decision. If available, they must be observed. Otherwise, the principle of two-sidedness applies.
2. Bilateralness: If there is a principle of bilaterality with the country of origin of the judgment or if the state that issued the judgment gives effect to decisions issued by the state in which the exequatur is considered. 3. International enforcement of judicial decisions: Compatibility of a judicial decision with the laws of the country in which he is asked to be recognized. This is especially true for the following:
• There is no conflict with the laws of the country where the decision is being considered.
• No conflict of jurisdiction of the country where the decision is being considered.
• The party against which the judgment is issued must be notified in accordance with the law.
• A court decision must be drawn up in accordance with the laws of the state in which it was issued.
The duration of the decision depends on the personal circumstances of the person and on the need to make notifications outside of Spain and can vary from several weeks to several months.
What documents are needed?
Together with the requirement of exequatur, the following documents must be submitted:
• A certified copy of the judgment.
• A document confirming that the judgment is final, that is, is not subject to appeal. Unless this finality is provided for by the decision itself.
• A document confirming that the accused was notified of the decision or that it was delivered in absentia.
• A certified translation of the judgment if it is not issued in Spanish.
• A certified photocopy of an alien’s ID or identification number.
• General power of attorney for court cases, certified by a notary or consul.
• When it comes to the procedure for the divorce ruling, a marriage certificate, a child’s birth certificate, if any, and a regulatory agreement if the divorce was by mutual agreement are required.
Requirements for the recognition of a foreign divorce judgment
Foreign citizens legally residing in Spain, or Spaniards who have received a decision to divorce abroad and want to legalize it in Spain, must fulfil a number of requirements to recognize this decision:
1. The case must not contradict public order.
2. The submitted documents must be duly legalized and legalized by the judicial and diplomatic authorities of the country of origin.
3. In the exequatur procedure, the party that requires the recognition of a court decision must be represented by an attorney and have a lawyer, with the exception of some cases of direct registration of civil status in the book of records.
Documentation for exequatur of divorce
- A certified copy of the judgment with an apostille issued by the competent authority of the state of origin. Apostille is not needed for decisions of countries such as Israel, Germany, Italy.
2. Certificate of finality of the judgment.
3. Evidence that the accused was notified of the decision or that it was delivered in absentia.
4. If the divorce was by mutual agreement, then the regulatory agreement must be legalized and have an apostille.
5. If the judgment is issued in a foreign language, then a certified translation into Spanish is required.
6. Certificate of marriage.
7. Birth certificate of children, if any.
8. Marriage certificate from the civil registry book (if necessary).
9. General power of attorney for court cases (for the recipient country and legalized at the Consulate of Spain).
10. A photocopy of the identity card or identification number of the alien.