Law 15/2015, of 2 July, on Voluntary Jurisdiction, among the varied and important competences attributed to notaries, modifies the Civil Code to introduce divorce before a notary. From now on, we notaries will have to enter into a new skin in order to marry and divorce. However, those who marry or divorce before a notary will undoubtedly have effective and personal information on the legal status of their marriage or its dissolution, which can be very useful in assessing such important decisions. What is certain is that both acts, marriage and divorce before a notary, have been an instant and immediate success.

The following are some of the special features of divorce before a notary public.

The firstIn contrast to marriage before a notary, no prior action is required. The file is formed by petition or request of the spouses and presentation of certification of the Civil Registry of the marriage; the marriage must not have minor or incapable children and they must be assisted by one or two lawyers. A regulatory agreement shall be drawn up in a public deed and this shall have the effect of dissolving the marriage. This dissolution is not prejudicial to bona fide third parties as long as it is not registered in the Civil Register, which the notary will notify immediately, and as far as possible by computerised means. Divorce before a notary is fully applicable as of 23 July 2015.

The scarce three months that have elapsed since then have already revealed various interpretative doubts, which cannot be resolved by a reform of the Notarial Regulations - essential in the next legislature - and needless to say by an Instruction of the DGRN. A Circular of the General Council of Notaries would be more appropriate, although also lacking regulatory status, in order to unify notarial practice.

In any case, the issues detected so far are as follows. A previous one, about which little can be done, consists of the lack of computer application systems in some judicial offices that hinder the possibility of entering data in the Civil Register on divorce before a notary. It should be recalled that there are currently thirteen court offices and a timetable for their interconnection, but the Civil Register Act is still in its infancy. stand-by.

In addition, a number of normative shortcomings have been identified. Firstly, there is a lack of normative coordination with existing international instruments in relation to the applicable law, recognition or enforcement of divorce.

With regard to the first aspect, Spain belongs to the group of Member States that have established enhanced cooperation between themselves in relation to the law applicable to divorce and legal separation (Regulation (EU) No 1259/2010, Rome III). This Regulation establishes a rule of universality, which renders Art. 107 of the Civil Code inapplicable. By virtue of this rule, when the spouses have different personal laws, they may authentically choose the common law. For this purpose, Spain has declared to the Commission, in accordance with Article 17 of the Regulation, the form provided for in Article 9.2 and 9.3 of the Civil Code in accordance with Article 149.1.8 EC, i.e. an authentic instrument, generally a public deed. In the absence of a prior agreement - it is very useful to establish this when capitulating - the applicable law could, if the law of the forum so provides, be designated before the court in the course of the proceedings. In such a case, the court will record the designation in accordance with the law of the forum. The question is, can this designation before the notary be extended? The answer is yes, because although non-judicial divorce is not possible under Rome III, the states determine who the courts are according to their own law (Art. 3.2). As the notarial divorce is part of the jurisdiction of the forum, alternatively with the court - former court clerks - there should be no doubt about the possibility of a choice of law before it.

The second question is the recognition of notarial decisions under Regulation EC (No) 2201/2003 , Brussels IIa. Mutual trust, as recital 21 recalls, is the basis for the recognition and enforcement of judgments. This limitation makes it advisable to include a clause in the deed on the notary's own jurisdiction, in accordance with Article 2 of the Regulation, in order to clarify the notary's status as a court, which is distinguished from that of a judge. Since, let us remember, the divorce is by mutual consent and without the interest of third parties to be protected, the general jurisdiction of § 3 can be asserted directly by the spouses. In addition, the notary must issue a copy of the form provided for in Article 39 in order to execute it in another Member State, including by registration in the civil register of that Member State.

Finally, is divorce to be regarded as a personal act, is it subject to power of attorney, only by one spouse or by both, in favour of the legal practitioners attending the act or of a third party? Leaving aside the blurred role of legal assistance, it must be considered that a proxy is possible, without requiring the personal presence of both spouses to ratify the petition for divorce, but the representative will be a nuntius as in all family acts: concrete and specific of the declaration of will. Although Article 55 of the Civil Code has not been amended, I consider it prudent to request the presence of one of the spouses. Another unclarified issue is that of the notary's incompatibilities to marry or divorce, which seem to me to be different in each case and not strictly regulated by Article 139 of the Notarial Regulations.