Most concepts of Private International Law are not only autonomous, but relative. We can find a fine example on the Spanish Supreme Court judgment of 5 December 2018, that deals with the succession of a UK citizen who had been resident in Spain for a number of years and was deceased before 17 August 2015. As a consequence, the law applicable to his succession was not determined by the Succession Regulation (Brussels IV) but by Spanish national law, i.e. by Article 9.8 of the Spanish Civil Code: «Succession mortis causa shall be governed by the national law of the deceased at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator at the time of execution thereof shall remain valid even if another law is to govern the succession […]».
The Supreme Court dealt with proceedings filed by the testator’s spouse, who claimed that the testator stated in his Will (granted in Spain) that he maintained his domicile of origin in Leeds, England, and that he still had assets in this country (in particular, bank accounts). The testator’s wife was therefore right in saying that his last domicile (as understood under English law, i.e. permanent home) was England.
The defendants in these proceedings were the testator’s children, who in turn maintained that their father had their domicile (as understood under Spanish law, i.e. habitual residence) in Spain, in accordance with Article 40 of the Spanish Civil Code: «The domicile of natural persons for the purposes of the exercise of civil rights and the performance of civil obligations shall be their place of habitual residence and, as the case may be, their«vecindad civil» as determined by the Civil Procedural Law […]». The testator’s children were also right in saying that his last «Spanish domicile» was Spain.
The question that arises is patently clear, but manifestly complex: what is the applicable law to the succesion mortis causa of a British citizen that had his last habitual residence in Spain but maintained his domicile in England?
As we have seen above, under Article 9.8 of the Civil Code the applicable law would be, it would seem, English law. However, in applying English law, Spanish courts faced a potential renvoi under Article 12.2 of the Spanish Civil Code: «Referral to foreign law shall be deemed made to its material law, without taking into account any renvoi made by its conflict of law rules to another law other than Spanish law». In compliance with this article, English OR Spanish law would be applicable to all movable assets (because they are subject to the law of the domicile of the testator) whilst Spanish law law would be applicable to all immovable assets (because they are subject to the law of their location, Lex loci rei sitae). But what was the testator’s law of domicile? And did this question have to be elucidated using the English or the Spanish notion of domicile?
The case had to be resolved taking into account the relativism of legal concepts. If the Spanish Court had to apply English law, its duty was applying it just like an English Court would apply it, i.e. in accordance only with English law. In that context, the Spanish judge had no option but to conclude that when English law includes a reference to the domicile of the testator, it is always referring to the English concept of domicile.
This lead the Spanish Supreme Court to conclude that using the Spanish notion of domicilewhilst applying an English conflict of laws was not correct and not what the English legislator intended, particularly taking into account that the Spanish domicile is rather a fiscal notion (having spent over 183 days per year in the country) than a civil one. The Court ruled that «when applying foreign law, the Spanish judge must rule as closely as possible to the ruling of a Court of that State, and must apply that foreign law in full […] This principle enhances international harmony and has been upheld by this Court».
The English and Spanish notions of domicile cannot be equated. The habitual residence of an individual does not amount to his «English domicile», because a person can de factoreside in a country and maintain his domicile of origin in England. In the present case, the testator had not changed his domicile of origin for a domicile of choice. He kept his links with England, stated in his Will that his domicile was England, and had assets in England. Therefore, when it came to movable assets, there was no renvoi: English law was applicable all along.
Tip: applying a foreign law is not just a matter of translation, but of immersing yourself in a different set of rules where each word has its own distinctive history and meaning. Remember that law is sometimes as untranslatable as poetry: traduttore, traditore!
Olalla García-Arreciado Mazarío