I have analysed the consequences that a cross-border divorce can have, sometimes inadvertently, for a couple and for their children. Now, I focus on whether a court decision can cross borders easily, or whether it may end up being just a useless piece of paper.
Given that all the court proceedings I have discussed so far started after the implementation of Brexit (which occurred, exactly, at 11pm, UK time, on 31 December 2020), these proceedings are completely outside the scope of the various EU regulations on family matters. This complicates the recognition and enforcement outside the UK of any court decisions made in those proceedings - this is automatic between Member States of the EU, whereas it can become a headache when the decision comes from a non-EU country such as the UK.
Cross-border enforcement of property transfers
Let's say, for argument's sake, that the English judge orders Xabier to transfer to Sara the property in La Moraleja (Madrid), at no cost to her. Let's then imagine that, when the time comes for Xabier to transfer the title to Sara, he decides to become uncooperative, and he refuses to appear before a notary or a land registrar to execute the necessary documents. What can Sara do to enforce the English order and ensure that she actually does receive the title and possession of the property?
An English court order about assets located in Spain will need to go through a court process known in Spain as exequatur. A Spanish judge or land registrar may find some difficulties in finding the right legal fit for a decision that transfers to Sara real estate that is not only registered in Xabier's sole name, but registered specifically as his separate or non-matrimonial property, in accordance with his matrimonial property regime. Indeed, Xabier could try to object to the enforcement of the English order arguing, for example, that the English court has ignored some or all of the rules set out in the parties' marriage contract and that, in that way, the English decision contravenes the Spanish public order.
This is a risky argument, and I have not come across any case law suggesting that such an argument would be successful, but there are many risk-taking lawyers in Spain who I'm sure would be willing to take the risk. What is certain is that these transfers of ownership, in relation to both real estate and other assets such as cash or investments, are likely to result in a hefty tax bill to both parties. It is essential to analyse the tax consequences of any such transfers beforehand and before a decision is made in England, so that the English court (whose task is to distribute assets taking into account their net, rather than gross, value) takes them into account when distributing the available assets.
Enforcing maintenance orders
Regarding maintenance for Sara and Iker, an English court order could be recognised and enforced in Spain through the relevant Hague Convention, which both countries have signed. However, Sara can only invoke this Convention to enforce spousal maintenance if she simultaneously seeks enforcement of Iker's child maintenance. This means that under certain circumstances, Sara’s spousal maintenance might fall outside the Convention's scope. For instance, if Xabier complies with the child maintenance payments but not with spousal maintenance, or if the English order consolidates maintenance into a "global maintenance" figure rather than clearly distinguishing between spousal and child support. Similarly, if the English court assigns assets to Sara to cover her future income needs without specifying it in the order, Sara may need to resort to the cumbersome exequatur process to enforce her claim.
These complexities stem from the differences between common law (as practised in England) and civil law (as practiced in Spain). In Spain, there is a clear distinction between maintenance and the distribution of assets based on the couple’s matrimonial property regime. In contrast, English law employs more the flexible concepts of sharing, needs, and a blurred categorisation between matrimonial and non-matrimonial property, leading to less clear-cut boundaries.
Enforcing child arrangements orders
Any English decision that relates to Iker's living arrangements can also be recognised and enforced in Spain under a different Hague Convention ratified by both countries. Save for limited exceptions, the Convention ensures that these decisions are recognised and enforced across countries as if they had been made locally. This will be, by far, the part of the decision that will be more easily enforced abroad.
Conclusion and next steps
Click here for the final chapter, where we will delve into an unexpected turn of events that adds a surprising twist to Xabier and Sara’s legal saga—a true cherry on top of this complex cake.
Want to hear more from us? 
