You want a divorce and your husband is foreign or lives abroad

The case, in five lines

What is brought

Divorce action, together with the measures concerning the children, maintenance and, where the court has jurisdiction for it, the liquidation of the matrimonial property regime. Before the merits, two preliminary questions are decided: international jurisdiction, under Article 3 of Regulation (EU) 2019/1111 (Brussels II ter), and the applicable law, under Regulation (EU) 1259/2010 (Rome III). If there is agreement and there are no minor children or children with support measures, a divorce by mutual consent is available before the letrado de la Administración de Justicia (the court clerk) or by notarial deed, which the firm prepares and attends.

Before which court

The Sección de Familia, Infancia y Capacidad (the family, children and capacity section) of the Tribunal de Instancia (the first-instance court) and, where none exists, the civil section of the Tribunal de Instancia. Within Spain, the judicial district is set by Article 769 of the Civil Procedure Act: as a rule, that of the last marital home and, if he lives abroad and that home was not in Spain, that of your own domicile. The judgment is appealed before the Audiencia Provincial (the provincial court of appeal). If he files first in another Member State, the court there decides and the Spanish court is stayed under Article 20 of Regulation 2019/1111. If he obtains the divorce outside the Union, its recognition in Spain also falls to the Sección de Familia, Infancia y Capacidad.

Deadline

The divorce action neither lapses nor becomes time-barred: under Spanish law it is enough that three months have passed since the wedding (Article 81 of the Civil Code), or none at all if there is a risk to you or the children. What does run are other clocks. The ground of the last common residence (Article 3(a)(ii) of Regulation 2019/1111) only works while you still live in Spain. If you sue on the basis of your own residence, you need one year immediately before filing, or six months if you are Spanish, counted backwards from the day you file. The law of the last common residence only applies if that residence ended less than a year earlier (Article 8(b) of Rome III). Priority is given by the filing date (Articles 17 and 20 of the Regulation): whoever files first fixes the court. The attempt to negotiate under Article 5 of Organic Law 1/2025 is deemed ended if thirty calendar days pass after he receives the proposal without a reply, and the claim must be filed within the following year (Articles 7.3 and 10.4). The time limit to appeal the judgment is twenty days.

Who can bring it

Either spouse, without the other's consent and without having to allege any ground, if Spanish law applies and three months have passed since the marriage was celebrated. The claim is brought against the other spouse and, if there are minor children, the Public Prosecutor takes part. If the applicable law is foreign, the requirements (years of prior separation, listed grounds) are set by that law, unless it does not provide for divorce or does not give both spouses equal access on grounds of sex, in which case the law of the forum governs (Article 10 of Rome III).

Financial risk

In family proceedings costs are rarely awarded, although Article 7.4 of Organic Law 1/2025 allows the judge to take into account who refused to negotiate when deciding on them. The serious risk lies elsewhere: litigating in the wrong country and having the court decline jurisdiction or stay the case for lis pendens, with months lost; obtaining a judgment his country will not recognise because service was defective; having the Spanish judge grant the divorce but lack power to divide the assets without his agreement; or having a foreign law applied that nobody has proved. Add to that sworn translations, apostilles and, if foreign law must be established, the expert opinion.

Where you can sue: the grounds in Article 3

Article 3 of Regulation (EU) 2019/1111, known as Brussels II ter, decides which country can grant your divorce when there is a foreign element. It opens seven doors and there is no hierarchy between them: the habitual residence of both spouses; the last common residence, if one of them still lives there; the respondent's residence; in a joint application, the residence of either; the residence of an applicant who has lived there for one year; that of an applicant who is a national of that State and has lived there for six months; and common nationality. The fact that he is foreign changes nothing on its own: what counts is where each of you lives and since when.

In the typical case the decisive piece is the second door. If the last common residence was in Spain and you still live here, the Spanish courts have jurisdiction from day one, with no waiting period. If you were the one who left, that ground stays in the country you left for as long as he lives there, and it no longer lets you sue where you now live. The one-year and six-month doors are for someone arriving in a new country: they are counted backwards from the day the claim is filed and require continuous habitual residence, not stays. One day short and the court declines jurisdiction of its own motion, because Article 18 obliges it to do so where another Member State does have jurisdiction.

Habitual residence is not the municipal register or tax residence. The Court of Justice of the European Union understands it as the place where a person has, with physical presence and an intention to remain, the centre of their life, and it has held that, for these purposes, a spouse who divides their life between two States can have only one. In a case referred by the Audiencia Provincial de Barcelona (the Barcelona provincial court of appeal), two European Commission staff posted to Togo were resident in Togo, not in their home country, despite their status. If both spouses share two nationalities, the courts of either State will do. And Denmark does not apply the Regulation: for these purposes it is a third country, as the United Kingdom has been since 2021.

The race: whoever files first keeps the case

Because the grounds are alternatives, each spouse will usually have a court in their own country. In the situation described, you can sue in Madrid on the basis of the last common residence, and he, as a German with more than six months in Munich, can sue there. Article 20 of the Regulation resolves the clash with a mechanical rule: the court where the second claim is filed stays proceedings of its own motion and, once the first court confirms its jurisdiction, declines jurisdiction. It does not matter who has the better arguments or where the children are: what matters is the date.

That date is fixed by Article 17: proceedings are deemed to have started when the claim is lodged with the court, provided the applicant then takes the steps needed to have it served. And here comes what almost nobody tells you. In Spain, since Organic Law 1/2025, a divorce claim is not admitted without a prior attempt to negotiate: Article 5 requires it in all the special proceedings of Book IV of the Civil Procedure Act, and divorce is one of them, including when the dispute is cross-border. While you send your proposal and wait thirty days, he can file in his own country, where that requirement may not exist, and win the race with your letter on the table.

The answer is not to skip the requirement but to organise it. The proposal is sent in full with the claim already drafted and the documents translated, so that it can be filed the very day the period ends. Article 10 of that law allows the attempt to be proved with evidence that he received the proposal, even if he does not reply, and the proposal can include what you most want him to sign: the applicable law and the court. Two situations do not wait: the measures under Article 158 of the Civil Code to protect the children, including a ban on taking them out of Spain, need no prior negotiation; and where the Sección de Violencia sobre la Mujer (the section dealing with violence against women) is involved, Article 89.9 of the Organic Law on the Judiciary prohibits the use of these procedures.

Which law the judge will apply, and it is not always Spanish law

Having a court in Spain does not mean Spanish law applies. Article 107.2 of the Civil Code refers to the European rules, and in Spain Regulation (EU) 1259/2010, Rome III, applies, even where the law it designates is that of a country outside the Union (Article 4). If there is no choice, Article 8 works in steps: the law of the common habitual residence when the claim is filed; failing that, that of the last common residence, provided it did not end more than a year earlier and one of the spouses still lives there; then that of common nationality; and lastly that of the court seised.

That year in the second step is another clock. In the situation described, if the claim is filed before a year has passed since he left, Spanish law applies, whether you sue in Madrid or in Munich. Once the year has passed, each court would apply its own law, because there is no common nationality. That is why an agreement is sometimes worthwhile: Article 5 allows the spouses to choose the law of their common residence, that of the last common residence if one of them still lives there, that of the nationality of either of them or that of the forum, up to the moment the claim is filed, and the agreement must be in writing, dated and signed by both. If the designated law does not provide for divorce or does not give both spouses equal access on grounds of sex, Article 10 imposes the law of the forum.

Rome III does not govern all of Europe: only the States taking part in that enhanced cooperation apply it. The Netherlands, Sweden, Ireland or Poland, for example, are not among them, and their judges apply their own system, so choosing a country also means choosing a law. Where the applicable law is foreign, Article 281.2 of the Civil Procedure Act requires its content and validity to be proved, and the Tribunal Supremo (the Supreme Court) has held that this burden falls on whoever relies on it. Article 33.3 of Law 29/2015 only allows Spanish law to be applied exceptionally where the foreign law could not be established: it is a safety net, not a right, and it is unwise to litigate relying on it.

Children, maintenance and assets: each piece has its own judge

The divorce is one piece; what comes with it are others, and each has its own rule. Custody and contact are decided by the court of the State where the child is habitually resident when the claim is filed (Article 7 of Regulation 2019/1111). In the situation described, the child lives in Madrid: even if he wins the divorce race in Munich, matters concerning your daughter are decided in Spain, unless both of you accept another court on the terms of Article 10. If what you fear is that he will take her, international return has its own procedure, which we cover in a separate guide.

Maintenance follows Regulation 4/2009: in addition to the court of the claimant's residence, its Article 3 allows maintenance to be sought as ancillary to the divorce proceedings, unless that court's jurisdiction is based solely on the nationality of one of the parties. As a rule the amount is calculated under the law of the creditor's residence, by reference to the 2007 Hague Protocol, which between spouses allows an objection where another law, particularly that of the last common residence, has a closer connection. How to collect it if he stops paying from abroad is explained in our guide on cross-border maintenance.

Assets are the piece that surprises people most. Regulation (EU) 2016/1103 gives the divorce judge jurisdiction over the matrimonial property regime, but its Article 5.2 makes it subject to both spouses' agreement where that judge has jurisdiction solely on the basis of the applicant's residence for one year, or six months if a national, or on residual jurisdiction. In plain terms: if you sue in Spain only because you have lived here for a year, the judge can divorce you but cannot divide the flat unless he accepts it. Under its Article 26, the law governing the assets is that of the first common habitual residence after the wedding, but only for those who married or chose a law on or after 29 January 2019; earlier marriages without an agreement are governed by Article 9.2 of the Civil Code. And if Spanish law applies, it remains to be seen which one: community of acquisitions under the Civil Code, separation of property in Catalonia or the Balearic Islands, the consorcio regime in Aragon, the conquistas regime in Navarre.

When he lives outside the Union, or you do too

Article 3 of the Regulation applies even if the respondent lives in Morocco, the United States or Argentina: if you meet one of its grounds in Spain, you sue here. The problem arises when none of the grounds points to a Member State, for example because both spouses live abroad and share no European nationality. Article 6 then refers to the law of each State, which in Spain is Article 22 quater(c) of the Organic Law on the Judiciary. Its criteria mirror those of the Regulation: common residence, last common residence, the respondent's residence, one year of the applicant's residence, six months if the applicant is Spanish, or Spanish nationality of both.

The practical consequence often hurts: a Spanish woman living in Miami with an American husband cannot divorce in Spain merely because she is Spanish. She needs both of them to be Spanish, or to come back and build up six months of residence here. And there is a finer limit: Article 6.2 of the Regulation protects a spouse who resides in a Member State or holds its nationality, who can be sued in another Member State only on the European grounds. The Court of Justice applied this to a Spanish woman married to a Portuguese man, both posted to Togo: the Spanish courts could not use their national residual jurisdiction rule against him, although the Portuguese courts could apply theirs.

Outside the Union, service and recognition also change. The claim is served under whatever cooperation convention binds Spain to that country, or through consular channels, with a translation, and that takes months that must be planned for. The Spanish judgment is worth over there whatever the law over there says: some countries recognise it almost automatically and others require proceedings before their own courts. If he relies on a private divorce before a religious authority, bear in mind that the Court of Justice has placed such divorces outside Rome III and that their effect in Spain depends on recognition, where public policy and whether you were able to defend yourself are examined.

Making the divorce count in his country too

Within the Union, the Spanish judgment is recognised in the other Member States without any special procedure, and the civil register there is updated as a matter of course once it is final (Article 30 of the Regulation). The Annex II certificate, issued by the Spanish court itself at a party's request (Article 36), is enough. But Article 38 lists the grounds for refusal, and one of them decides many cases: a judgment given in default where the claim was not served in time and in such a way that he could arrange his defence. A divorce obtained by service by public notice while his address in Munich was known is a divorce valid in Spain that may not be valid in Germany.

If there is agreement and there are no unemancipated minor children or children with support measures entrusted to the parents, the fastest route is the notarial divorce deed under Articles 82 and 87 of the Civil Code. Two nuances almost nobody points out. First, both spouses must give their consent in person, assisted by a lawyer, and Spanish consular officials cannot authorise that deed: if he cannot come to Spain, that door closes. Second, Spain must have jurisdiction under the Regulation, because the deed only circulates if it was executed on that basis; once that is met, it is valid throughout the Union as an authentic instrument, with the Annex VIII certificate (Articles 64 to 66).

Conversely, if he obtains the divorce outside the Union, it has no effect in Spain until it is recognised. Exequatur under Law 29/2015 is sought before the Sección de Familia, Infancia y Capacidad of the Tribunal de Instancia, to which Organic Law 1/2025 assigned the recognition of foreign family decisions. Until it is recognised, you remain married for Spanish purposes, and that matters for your property regime, for a new marriage and for an inheritance. And if that divorce was obtained without summoning you, that is precisely the ground that allows you to oppose it.

How we run the case, step by step

1. 1

   Put dates on the breakdown

   Before choosing a court, three things are dated: when and where you stopped living together, since when each of you has lived where you are now, and which nationalities you hold, including second ones. That shows which Article 3 grounds you have today, which ones he has, and on what date the year under Article 8(b) of Rome III runs out. It is the map of the race, and it is drawn up on day one.

2. 2

   Gather the proof of residence and the civil documents

   Marriage certificate, the children's birth certificates and passports, with an apostille and sworn translation where they are foreign; and proof of your habitual residence: tenancy agreement or title deed, employment contract, social security record, school enrolment, health card. Whatever is missing today is what will delay filing tomorrow, and in this area a delay can cost you the court.

3. 3

   Send a complete proposal with proof of receipt

   By a method that proves receipt and content, he is sent a concrete proposal: arrangements for your daughter, maintenance, assets and the agreements it is worth him signing, the choice of law (Article 5 of Rome III) and of court. From the moment he receives it, the thirty calendar days of Article 10.4 of Organic Law 1/2025 start to run. If proceedings are open before the Sección de Violencia sobre la Mujer (the section dealing with violence against women), this step is skipped.

4. 4

   Have the claim ready for the day the period ends

   The claim is drafted, translated and signed while the period is running, not afterwards. It is filed on the first day the requirement is met, because the filing date is what counts for lis pendens under Article 20. If there is a risk that he will take your daughter out of Spain, the measures under Article 158 of the Civil Code are sought at once, without waiting for the negotiation.

5. 5

   Serve him properly, even if it takes longer

   The claim is served at his real address, through the cooperation channel that applies to his country and with a translation into a language he understands: within the Union, under Regulation (EU) 2020/1784; outside it, under the applicable convention or through consular channels. Article 17 requires the applicant to take the necessary steps for service, and flawless service shields the judgment against Article 38.

6. 6

   Make the judgment count in both countries

   Once the judgment is final, it is entered in the Spanish Civil Register and the court is asked for the Annex II certificate so that the register of the other Member State records it without further proceedings. Outside the Union, recognition is prepared under the law there. And what was decided about your daughter and maintenance is placed on record, since those are the pieces he will try to move afterwards.

The law that applies

• Art. 3 Reglamento (UE) 2019/1111. Sets the alternative grounds of jurisdiction in divorce: common habitual residence, last common residence if one spouse still lives there, the respondent's residence, the residence of either spouse in a joint application, the applicant's residence for one year, or six months if a national of that State, and common nationality. 32019R1111
• Arts. 6, 17 y 20 Reglamento (UE) 2019/1111. Article 6 refers to national law only if no Member State has jurisdiction and protects a respondent who resides in or is a national of a Member State. Article 17 places the start of proceedings at the filing of the claim; Article 20 obliges the second court to stay of its own motion and, once the first court's jurisdiction is confirmed, to decline jurisdiction. 32019R1111
• Arts. 5, 8 y 10 Reglamento (UE) 1259/2010 (Roma III). Allows spouses to choose the law governing the divorce from that of their common residence, that of the last common residence if one still lives there, that of the nationality of either, or that of the forum, up to the filing of the claim. Without a choice it applies, in steps, the common residence, the last common residence ended less than a year earlier, common nationality and the law of the forum, which also governs if the designated law does not provide for divorce or discriminates on grounds of sex. 32010R1259
• Arts. 5 y 26 Reglamento (UE) 2016/1103. The divorce court has jurisdiction over the matrimonial property regime, but needs the spouses' agreement if its jurisdiction rests solely on the applicant's residence (one year, or six months if a national) or on residual jurisdiction. Without an agreement, the law governing the regime is that of the first common habitual residence after the wedding, applicable to marriages celebrated on or after 29 January 2019. 32016R1103
• Art. 22 quater LOPJ. Jurisdiction of the Spanish courts in separation and divorce where the European grounds do not apply: common residence, last common residence if one spouse still lives here, the respondent's residence, a joint application with one spouse resident, one year of the applicant's residence, six months if Spanish, or Spanish nationality of both. BOE-A-1985-12666
• Arts. 82 y 87 CC. Govern separation and divorce by mutual consent through a settlement agreement before the court clerk or by notarial deed, once three months of marriage have passed: the spouses consent in person with legal assistance, consular officials cannot authorise the deed and the route is closed if there are unemancipated minor children or children with support measures entrusted to the parents. BOE-A-1889-4763
• Art. 33 Ley 29/2015. Proof of the content and validity of foreign law follows the rules of the Civil Procedure Act and is assessed on sound judgement; no opinion binds the court and, only exceptionally, where it could not be established, Spanish law may be applied. BOE-A-2015-8564
• Art. 5 LO 1/2025. Requires a prior attempt at an appropriate dispute resolution method for the claim to be admitted in declaratory and special proceedings under the Civil Procedure Act, divorce included. It exempts, among other matters, measures under Article 158 of the Civil Code, filiation and the return of children in international abduction cases. BOE-A-2025-76

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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