Covid-19: a jurisdiction focus on Spain
Olalla García-Arreciado Mazarío
Associate Spanish Abogado & Registered European Lawyer – International Family & Private Wealth Department – Child & Child, London
On 14 March 2020, the Spanish Government declared the state of emergency or estado de alarma throughout the country following the outbreak of Covid-19. Royal Decree 463/2020, of 14 March set the initial 15-day period, as permitted under Article 116 of the Spanish Constitution of 1978. On the expiry of the initial period, the government has requested four two-week extensions in Parliament, and at the time of writing, the current position is that the state of emergency will be in place until at least 24 May 2020. It is worth noting that the last parliamentary debate was heated, and several political parties voted against the extension, while others abstained. A further extension well into June, which the government claims is absolutely necessary, may prove difficult to secure.
The Royal Decree did not include any specific provision regarding access to and functioning of the court system, other than its Fourth Additional Provision, which suspended all statutory limitation periods for the exercise of any actions or rights until the state of emergency was lifted. The General Council of the Judiciary immediately approved protocols regulating court activity, suspending all ongoing proceedings and preventing parties from filing new proceedings. These measures did not apply to matters considered urgent, which from the perspective of family law, meant incidents of domestic violence, child abduction, and any of the orders provided for in Article 158 of the Spanish Civil Code of 1889. This would concern issues such as breaches of the duty to provide child support and cover a child’s needs, measures to prevent abduction (eg, a ban on leaving national territory other than with court authorisation, retention of passport, etc), and any other orders which may be necessary to protect a child from danger.
Urgent cases are dealt with differently in each court depending on the facilities and tools available within the premises. Some hearings are proceeding in person, with extreme preventive measures including distancing, partition screens, gloves, no access to the public, etc. Others are taking place via telephone or video link, using programs such as Skype or Zoom. However, many courts do not have access to this technology or have judges who are reluctant to use it, while many lawyers are trying to delay matters by requesting hearings to be conducted in situ. Although some professionals may have legitimate concerns on whether a remote hearing will be fair, others are using the crisis to protect a status quo that favours their clients. This may be questionable for an English solicitor, who as an officer of the court has a duty to the administration of justice, but is less so for Spanish abogados, whose sole duty is to their client.
One of many Covid-19 ripple effects has been a dramatic halt of judicial activity in family law cases. For several weeks, measure to combat the pandemic have prevented lawyers from issuing applications that are essential for clients from an emotional or financial point of view. These would include divorce petitions, spousal maintenance and household work compensation, distribution of assets following the dissolution of the matrimonial property regime, child arrangements (custody and access); and most importantly, the enforcement of orders concerning all of the above has been stopped. This decision may prove irreparable and have long-term effects in cross-border cases with jurisdictional cpmpetition, given that other countries (such as the United Kingdom) have continued to allow parties or their legal representatives to file such petitions. This will undoubtedly result in cases where one of the parties (usually, the financially weaker one) has filed proceedings in England during a period in which the other party was unable to file in Spain. This may see unfair to some, particularly if it will mean financial difficulties down the line for them or their clients. But we can only assume that the party who filed first met the seizing threshold established by Article 16 of Brussels II bis (even if service of the application was not immediate), therefore securing the jurisdiction of the mighty generous English courts.
Lawyers protested this decision and lobbied until on 15 April, the Council agreed to allow legal representatives to file applications, although they will not be processed unless urgent. This may give international clients some peace of mind if they intend to seize the Spanish courts first, even though cases are unlikely to progress for at least the next few weeks, and the backlog will be such when they return to normal activity, that timescales will be pushed back by many months.
As professionals, we must recommend clients to negotiate in good faith with the other party if circumstances have substantially changed due to the Covid-19 outbreak and changes need to be introduced to orders (whether originally made by consent or by court decision) that deal with ongoing issues, such as periodical financial obligations (spousal or child maintenance, school fees, etc), custody and access. Particularly when dealing with matters concerning children, both parents should cooperate and put the interest of the child first, without taking advantage for spurious reasons. It is necessary to take a pragmatic approach and persuade the client that, other than in exceptional cases, an agreed deal now (subject to the necessary caveats, such as being only temporary and/or to be reviewed in a fixed period of time) is a much better option than embarking in proceedings that can be more lengthy and cost more than ever, and with a far from certain outcome. It is very important for clients not to act unilaterally or simply assume that the court will understand that the scenario was exceptional. Breaches are unlikely to go unnoticed, and the rules of enforcement in Spain are stringent. Court orders will be enforced on their own original terms regardless of any change in circumstances, unless there is a new order that supersedes it or a variation agreement between the parties, put in writing and properly drafted. Particular consideration should be paid to the question of whether any variation will be retroactive or not, because unless specifically stated, it will be considered as intended to apply from the date of the agreement only.
Perhaps the Covid-19 crisis will finally help the Spanish judicial system embrace technology and embark on a new era of efficiency and pragmatism – call me a dreamer! In the short-term, however, family law is one of the areas more likely to be left behind when normality is left behind, particularly due to the lack of specialised courts, judges and lawyers, which has a dire effect on complex cases or those with an international element. It is now time to make an immense effort to improve how family courts operate, and this could provide a great opportunity for doing so.