NINE F.A.Q. ON ENFORCEABILITY OF A FOREIGN SENTENCE IN SPAIN (EXEQUATUR)

Exequatur in a nutshell.

 

What is the ultimate goal of the exequatur procedure?  

 

The ultimate goal of the procedure is to ensure that compliance is not given to a sentence Spanish law would consider "unfair". Spanish courts do not analize the essence of sentences. They rather stick to checking whether it fulfills the requirements that law establishes for them to be considered valid -and therefore recognizable and enforceable- in Spain.

 

 

How long does it take and how much does it cost? 

 

The duration varies depending on the type of exequatur, the courts before which the procedure is conducted, and over all, the need to notify it to people living abroad. It can range from a few weeks to several months. 

 

As for the price, Varés & Asociados charges a unique fee of 495 euros for processing an exequatur when you already have all the required documents. That includes our expenses as well as our attoney´s ones.

 

If the procedure has any extra complication, or if you do not have some of the required documents, please contact us for a quote.

 

 

What are, in practice, the most frequent cases in which the exequatur is required?

 

There are three:

  • The recognition of foreign divorce sentences when at least one of the spouses is Spanish. In order for the Spanish spouse to inscribe his or her new marital status in the Spanish Civil Register, he or she will need to obtain the exequatur for the foreign divorce first.
  • The execution in Spain of a foreign sentence concerning alimony.
  • The execution in Spain of a foreign sentence that establishes a payment obligation when the debtor lives in Spain, or has its permanent site in Spanish territory. 

 

 

What laws do regulate the exequatur in Spain?

 

  • Exequatur will apply in case any of the two countries is not a member of the EU. In Spain, the exequatur procedure is regulated by the new Law on International Legal Cooperation of 2015.
  • If both countries belong to the European Union (except for Denmark), the recognition and enforcement of their sentences is automatic, and there will be no need to obtain the exequatur. In these cases, two EU regulations apply: 1215/2012 concerning civil and commercial sentences, and 2201/2003 for sentences regarding matrimonial and parental responsibility issues. Please contact us for more details.

  

 

Who can initiate the exequatur procedure? 

 

The procedure can be initiated by:

  • Any person in whose favour the foreign sentence was issued.
  • Any person whom the lack of recognition of the foreign sentence causes a damage to, or whose profit is hindered by that lack of recognition.

 

 

What documents are required?

 

An application for enforcement (exequatur) must include the following documents:

  • A certified copy of the sentence, legalized with the Hague Apostille.
  • A document proving that the sentence is final, that is, it cannot be appealed anymore.
  • A document proving that the sentence has not been rendered in absence of one of the parties.
  • An official translation of the sentence, in case it was not issued in Spanish language.
  • An authenticated photocopy of your ID.
  • A power of attorney, granted before a notary or a consul.
  • If the procedure concerns a divorce sentence, a literal marriage certificate. If the divorce was by agreed by the spouses, the document containing the agreement will be required too. Also, in case there are any children, their literal birth certificate is needed. 

 

 

What court should an exequatur application be filed to?

 

The exequatur application should be adressed to the Court of First Instance of the domicile of the party against whom recognition or execution is being sought, or that of the person concerned by the effects of the sentence. Alternatively, the jurisdiction shall be determined by the place of performance, or where that sentence should produce its effects. However, in the case of an application for recognition and enforcement of a sentence concerning commercial issues, the Commercial Courts will be the ones to recur to.

 

 

What happens then?

 

After the application is filed -it must be signed by both an attorney and a barrister- the procedure starts:

 

Firstly, the judge will ensure all the parties affected by the sentence are aware of its existence. To do so, and unless that awareness is proved beforehand, the judge will call the party against whom the sentence is being executed, as well as the public prosecutor. A certified communication will be addresed to that person, who is now obliged to stand before the court within a thirty days period. Should that person not stand before the court within that period, the procedure will continue in his absence.

 

If the person lives abroad, the judge will require legal assistance from the country that person lives in, either through the Ministry of Foreign Affairs, either -most commonly- through that country´s courts.

If that is the case, much more time will be needed to obtain the exequatur. Therefore a key objective of the attorney leading the procedure will be to prevent the judge from deeming it necessary. 

 

Once the judge determines the sentence fulfills the legal requirements, he will declare its enforceability.

 

Should the judge deny the exequatur, his decission can be appealed before the Provincial Court.

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