loader image

Got an Idea? We would Love to Chat

Making things with love in Berlin

Algunos principios para el Derecho digital europeo

El Derecho digital, en cuanto tal, no tiene carta de naturaleza, por lo que aún es más difícil inducir de los instrumentos europeos con los que contamos hoy, valores o normas de conducta, que sean susceptibles de ser considerados principios generales en una supuesta...

La nueva normativa europea sobre la digitalización de la Justicia

A finales de diciembre de 2023 se publicó el paquete europeo sobre digitalización de la Justicia integrado por el Reglamento (UE) 2023/2844, de 13 de diciembre de 2023 y la Directiva (UE) 2023/2843 de igual fecha, ambos negociados con el fin de reforzar la cooperación...

Sostenibilidad y Derecho de Sociedades Europeo

Los días 12 y 13 de diciembre de 2023 en la sede de la Real Academia de Jurisprudencia y Legislación de España, se celebró el Congreso Internacional “Nuevas orientaciones en el Derecho internacional: digitalización, sostenibilidad, derechos humanos y cooperación”.  En...

International aspects of marriage before a notary
Sep 26, 2022

Since Law 6/2021, of 28 April, which amends Law 20/2011, of 21 July, on the Civil Registry, Spanish notaries have been responsible for the preparation of matrimonial files prior to the celebration of marriages, and have also been granted officiating powers in the celebration of marriages. The Law on Notaries establishes that this will take the form of a deed and that the notary will verify the fulfilment of the capacity requirements of both parties, the non-existence of impediments or dispensations, or any kind of obstacle to contracting the marriage. The competent notary shall be the notary whose residence is in the place of domicile of either of them.

The system designed by the General Council of Notaries and endorsed by the DGSJYFP is the system of rotation between notaries in the locality. The celebration of the marriage may take place before the notary chosen anywhere in the national territory. In any case, the application, processing and authorisation of the act shall comply with the provisions of article 58 of Law 20/2011, of 21 July, on the Civil Register and, where not provided for, by the Law on Notaries.

Marriage between international couples in Spain is generally viewed from the point of view of avoiding marriages of convenience, a purpose in which the reserved interview conducted by the notary is of particular interest. However, although this is an important issue, it is not the only aspect to be dealt with, as international couples normally exercise their right to marry without any shadow of illegality.

The complexity of the documentary forms relating to the formation of the marriage file (canonical or non-Catholic religious; before the Civil Registrar - including the Consuls - and before a notary) and their different regime depending on whether the marriage is contracted in Spain or abroad, makes it difficult to understand the requirements that must be checked by the notary in his work.

Briefly considered, there are a number of relevant issues.

  • Firstly, the notarial procedure must be complete, given the impossibility of coordinating the notarial procedure with the consular procedure in the event that a contracting party is not on national territory. In this case, the notary cannot, according to the DGSJYF, call on the relevant consul for the integration of the proceedings, which prevents the notary from compiling the file and its complete assignment to the Registrar of Vital Statistics.
  • On the other hand, in the course of the formation of the dossier between international spouses, there are two distinct topics. The first refers to documentary evidence and the second to the accreditation of the capacity of the non-Spanish contracting party. In both cases, a distinction must be made according to whether the parties are nationals of a Member State of the European Union or of a third country.

For European citizens there are nowadays several procedures in relation to one or the other issue. Previous documents such as birth certificate or criminal record certificate (necessary to check for impediments linked to blood crimes in the family - such as conjugicide, generally relevant as an impediment) can circulate through the multilingual forms unified in Regulation 2019/1191, in all languages or in those specially notified to the Commission, in untranslated templates, submitted to the IMI system (internal market information), in case of doubt, verified by the Central Authority. In Spain the D.G. Seguridad Jurídica y Fe Publica.

  • This simplification is not obligatory for the contracting parties as they may continue to prefer the apostille regulated by the Hague Convention of 5 October 1961. This is generally the case in view of the lack of knowledge of the civil registration authorities in Europe about the application of this Regulation.
  • In addition, the application of the ICCS Convention No 16, or Vienna Convention on Multilingual Birth Certificates, which avoids the need for an apostille among the participating States, cannot be overlooked, as certificates from third States will in any case require an apostille or, failing that, diplomatic legalisation if the State is not a party to the Hague Convention.
  • But undoubtedly the essential element in the formation of the matrimonial file between international spouses is the accreditation of matrimonial capacity.

Capacity according to Art. 9.1 of the Civil Code, which remained unchanged after Law 26/2015 of 28 July 2015 on the modification of the system of protection of children and adolescents, is governed by the personal law of the contracting party. That is to say, by the law of his or her nationality. In order to analyse their accreditation, it is again necessary to distinguish between nationals of EU origin and, within these, those who are party to the ICCEC Convention 20 of Munich. For non-EU nationals, Art. 100 of the Civil Register Act and, in addition, Art. 168. 4 of the Notarial Regulations, which requires proof of law, if the notary does not know the legislation of origin, by the ordinary means of proof detailed therein (Report of the Consul in Spain or notary). Administrative or judicial certification issued in the country of origin must be added, duly apostilled and, where appropriate, translated, at the discretion of the notary.

For European citizens there are nowadays several procedures in relation to one or the other issue. Previous documents such as birth certificate or criminal record certificate (necessary to check for impediments linked to blood crimes in the family - such as conjugicide, generally relevant as an impediment) can circulate through the multilingual forms unified in Regulation 2019/1191, in all languages or in those specially notified to the Commission, in untranslated templates, submitted to the IMI system (internal market information), in case of doubt, verified by the Central Authority. In Spain the D.G. Seguridad Jurídica y Fe Publica.

For European citizens, the problem arises of the preferential application or not of the 20 ICCS Convention (Munich), which requires the issuance of a standardised certificate, between the participating States, which is very difficult to fulfil outside the consular authority (which presupposes that the contracting party lives outside his or her country). Art.19 of R. (EU) 2016/1191, to which all Member States except Denmark are party, simplifies the issuing of the certificate by determining the preference of its application between the Member States, without prejudice to its voluntary nature.

This duality of forms prompts Professor ADROHER BIESCA to reflect on the usefulness of the notarial law judgment, which brings together the various forms of accreditation, if she were aware of the content of personal law, in order to make life easier for European citizens, which is the objective of the Union's legislation, especially in the area of family law. Although work in this area - vulnerable adults and parenhood - will be a priority for the Commission over the next two years, the form of marriage and the requirements for its conclusion and capacity have not yet been addressed. Even less the approximation between Civil Registries.
For marriages that are to be celebrated abroad, in accordance with the form established by the law of the place of celebration or in religious form, and the presentation of a certificate of marital capacity of the Spanish partner is required, the matrimonial file processed by a notary in Spain by means of a deed containing his judgement of marital capacity shall have the character of a certificate of capacity (ex Art. 58.12 of the Civil Register Act).

The circulation of marriage certificates in Europe falls within the scope of Regulation (EU) 2019/1191, as does the registration of marriages that have already taken place.

We are therefore faced with a dubious regulatory framework that needs to be simplified.

en_GB