When a Spaniard marries a foreigner his must register his marriage with the Spanish Consulate where he has contracted the marriage or in the Central Spanish Registry so that such marriage may be put into effect in Spain.
During the registration process, which can take more than one year, Spanish authorities study the case to see if it is a valid marriage, fraudulent or a marriage of convenience. The last two examples will in effect lead to a denial of registration, thereby making it impossible for the foreign spouse to request an EU family member residence permit.
A judge from any Spanish city civil registry may declare the marriage one of convenience and reject the request. What is certain is that the majority of marriages declared as such are those that have been contracted abroad and go through a registration process at the consulate.
This being said, we may present a civil claim requesting that the judge recognizes the marriage and therefore prove that the marriage is not a fraudulent one. To do this, we asked International Law Professor Alfonso Ortega Giménez for his take on what is considered to be a ¨marriage of convenience¨ in Spain and this is what he had to say:
If we want to fully understand this concept, we ought to turn to Council of the European Union Resolution, on 4 December 1997, regarding the measures to be taken in fighting against fraudulent marriage. In accordance with the present resolution, a fraudulent marriage is: a marriage between a Member State national or a third country national that regularly resides in a Member State with a third country national, with the exclusive aim of evading entry and residence norms of third country nationals to obtain a residence permit or a residence authorization in a Member State.
Identified factors that lead to the assumption of a fraudulent marriage are the following:
a.) no proof of maintaining a life together
b.) the absence of adequate contribution to marriage liabilities
c.) the fact that spouses have not met prior to marriage
d.) the fact that the spouses show hesitatation when asked questions pertaining to one another´s personal and professional information such as: name, address, profession, nationality, the circumstances in which they met
e.) the fact that the spouses do not speak a common language
f.) that fact that they have paid a significant amount of money in order to celebrate the marriage- except in cases of a dowry where in some third country nations the presentation of a dowry is common practice
g.) the fact that either of the spouses has a history of fraudulent marriages or irregularities in terms of residency.
So far the Directorate General for Registers and Notaries (DGRN) has informed us of the following methods put forth to fight against and eliminate fraudulent marriages:
1.) On 9 January 1995, regarding the marriage proceedings when one of the partners lives abroad
2.) On 31 January 2006, regarding marriage complacency
In such a way, the DGRN has provided the Spanish civil registrars with a series of orientations and regulations to avoid the spread of complacency marriages that indicate, for example, that ¨it shall be presumed that real matrimonial consent exists¨ when one knows ¨basic personal and familiar information about the other.¨ However, those concerned must bear in mind certain rules such as when dealing with unknown information, it must be a clear and obvious error, not pertaining to specific details requiring the most concrete answer. It cannot be predetermined on a ¨closed-list¨ of basic data.
Also, to accredit the existence of a real relationship between spouses, the following five rules must be taken into account:
-type of relationship
-indisputable proof of monetary assistance
The true objective of a marriage of convenience is to receive certain benefits in the Law of Nationality and Immigration. On the one hand, the process by which the foreign spouse may acquire Spanish nationality is accelerated, inasmuch as the spouse of the Spanish citizen enjoys such priviledged position (= article 22.2 in our CC). One year alone of residency in Spain is enough for the foreigner (= article 22.2 of CC), as long as he has resided in Spain legally, continuously and immediately prior to the application (= article 22.2 CC). On the other hand, foreigners under this category are also granted an authorization of residence in Spain Spanish nationals.
since they hold the nationality of a third state that is not an EU Member State nor a EEE Member State and are either spouses or cohabitants of
Translated by: Katherine Pascal