Exequatur

What is Exequtur?

The Exequatur is a judicial procedure that recognizes the validity of a judgment issued by a foreign court, and allows its execution in a State other than the one that issued it.

To carry out the Exequatur, a procedure before the Court of First Instance will be necessary, in which the judge will verify that the requirements of Spanish law are met, so that the divorce from the other country can have value in Spain.

If that is the case, it will grant the Exequatur to said sentence, and will order that the divorce be registered in Spain.

What is the duration of the procedure?

The duration varies depending on the type of execuatur, the courts that process it and, above all, whether or not the judge considers the appearance of the respondent spouse necessary. They usually take six to nine months.

The Exequatur has become a common procedure, in addition they do not have to delve into the matter, but rather recognize what is reflected in the foreign sentence.

Who can initiate the Exequatur procedure in Spain?

All persons in whose favor the sentence was issued in a foreign country and, to any person, who wants it to be recognized in Spain, causes damage or prevents a benefit can do so.

The procedure begins with a lawsuit at the request of any person who proves a legitimate interest. It is very important to point out that Spaniards and foreigners, legally residing in Spain, who want a ruling that concerns them, issued abroad, to have effects in Spain, can apply. But an Exequatur is not an administrative procedure, so you need the intervention of a lawyer and a solicitor.

Which Court is the Exequatur lawsuit filed in Spain?

It is presented before the Courts of First Instance of the domicile of the party against whom the recognition is requested, or of the domicile of the person to whom the effects of that refer.

What happens after filing the Exequatur lawsuit?

After the presentation of the demand signed by the solicitor and the lawyer, the judge must make sure that all the parties affected by this sentence are aware of it. To do this, it will give a hearing to the party against whom it is directed, unless it is proven that said party agrees with the sentence, as well as to the Public Prosecutor’s Office. To summon the other party, the Court will issue certification to the audience, in whose territory it is domiciled. The interested party will have a certain term, from the reception of the communication for his appearance. After this period, even if the opposing party has not appeared in court, you must continue with the knowledge of the records. It is precisely this circumstance that will determine the duration of the procedure.

Once the aforementioned procedures have been carried out, the judge, by means of an Order, will declare whether or not the requested Exequatur must be complied with. Against the aforementioned Order, an appeal can be appealed to the Provincial Court.

Procedure steps.

First: gather all the necessary documents.

• Authentic copy of the judgment, legalized by the Spanish Consulate or with the Hague apostille.

• The document that proves that the judgment is final, that is, that it is not subject to appeal. (If the sentence does not rule on this issue, it will be necessary to obtain, from the court that issued it, the document that proves these conditions.)

• The document that proves that the sentence has been notified to the defendant. (If the sentence does not rule on this issue, it will be necessary to obtain, from the court that issued it, the document that proves these conditions.)

• The sworn translation of the sentence.

• The authenticated photocopy of the applicant’s national identity document or passport.

• The authenticated photocopy of the child’s passport.

• The literal marriage certificate.

• The literal birth certificate of the child.

• The regulatory agreement.

• The General Power of Attorney for Lawsuits, granted before a notary public or before the Spanish Consul. It is better to do this power of attorney at the Spanish Consulate in your country, because if it is done at a national notary’s office in the foreign country, it will have to be legalized or apostilled for it to be valid in Spain; but if you do it at the Spanish Consulate, as it is Spanish territory, you will not have to legalize it or apostill it.

Second: Hire an attorney to represent you.

Once you have all the documents, you will have to pay your lawyer to give you the invoice. With that invoice, you must request a power of attorney to represent you: the General Power of Attorney for Lawsuits. This document is essential because it allows lawyers to act on your behalf in court. This power of attorney has an approximate price of €60 at a Notary, but you will have to check the price at the Spanish Consulate.

Third: send the documents to Spain.

You must send all the documents, by certified mail and return receipt requested, to the address of your lawyer.

Fourth: send the claim to the Courts.

Once the documents have been received, the lawyer will draft an Exequatur claim, and once reviewed by the client, the lawyer can present it to the courts.

Fifth: hearing with the judge.

Once the claim is received in the court of first instance, the judge must receive the defendant in a hearing (we will try to prevent the judge from considering it necessary to call the defendant) and the Public Prosecutor. The defendant has a period of 30 days, from the receipt of the notification, to appear.

Sixth: entrance exam.

The judge examines the demand and the documents presented, and if they meet the requirements, he will issue the admission decree, transferring it to the defendant.

Seventh: opposition.

The defendant has a period of 30 days to oppose the Exequatur.

Eighth: Auto resolution.

Once the previous term has passed, the judge has 10 days to resolve by Order.