Algunas reflexiones sobre la ley aplicable a la separación judicial y al divorcio en el Derecho internacional privado español

• Main Author: María Dolores Adam Muñoz
• Format: Article
• Language: English
• Published: Universidad de Deusto 2012-09-01
• Series: Estudios de Deusto
• Subjects: crisis matrimoniales internacionales; separación judicial; divorcio; repudio; ley aplicable; autonomía de la voluntad; alegación y prueba del derecho extranjero; excepción de orden público internacional
• Online Access: http://revista-estudios.revistas.deusto.es/article/view/381
• ISSN: 0423-4847; 2386-9062

The research analyzes the article 107.2 of the Civil Code, Spanish International Private Law. It is applicable to the court separation and divorce, according to the reform operated on the Law 11/2003 on the date September 29th. The faults of the previous regulation and the reason that provoke the modification of this precept –which has been claimed in numerous occasions– are analyzed in this research itself. The trigger of the reform lies in a recommendation by the People Defence Lawyer to the Ministry of Justice. According to it, the International Private Law would contemplate the possibility of –being elected by the plaintiff part– the court separation or divorce could be governed, either by the common nationality law of the spouses, or by the last common habitual residence law (always this residence were located in Spain). However, the transformation made by the legislator in more ambitious and does not finish with recognizing the intention of autonomy, which, in fact, does not execute it, and establishes an unclear, incoherent, vague and wrong regulation. This imprecision is lent with special importance in this essay. At the same time, it contributes with different possible solutions for the regulation of the international court separation and divorce.