The equivalence of grounds for divorce as a condition for the recognition in Colombia of the Spanish divorce decrees: Incidence of the “Rome III” regulation

Abstract

The mutual recognition of decisions between Spain and Colombia is governed by an international convention with more than a century of existence. The convention does not provide forthe control of the law appliedas a condition of recognition. However, Colombian authorities, ignoring the provisions of the international text concerned, and on the basis of certain internal rules, subject the Spanish divorce decisions to that control. For the Colombian legal system, the control of the law applied aims primarily to finding an identity between the cause which led to the divorce in Spain and the causes admitted by the Colombian internal rules, determining the rejection of Spanish divorce decisions when the divorce does not take place by mutual agreement of the spouses. Proven this fact, two are the objectives pursued with this work. The first one is to study the fundamentals historically used by the Colombian case law to support his approach, in addition toits contextualization in the Spanish-Colombian bilateral treaty regime. The second one is to check how the current design of the Spanish conflict rule on divorce contributes to that undesirable result, this being favored mainly by two circumstances: on the one hand, the change in the migration flows resulting from the economic crisis suffered by Spain since 2007, a fact that has led to Colombian immigrants to return to their country of origin, as well as thedeparture of Spanish nationals to Colombia in search of new job opportunities. On the other hand, the frequency with which the Spanish law ends up being applied to international divorces taught in Spain.