Absence and Nationality under Spanish Civil Code

Posted on Dec 2, 2024 in Law & Jurisprudence

Absence

Article 32 of the Civil Code

Article 32 states: “The civil personality is extinguished by the death of people.” Absence refers to the lack of presence of an individual. It signifies a situation where someone is missing, their whereabouts unknown, and in some cases, there are concerns for their safety. Two scenarios of absence exist: absence due to normal causes and absence due to disaster situations. Articles 181-189 of the Civil Code govern absence.

Phases of Absence

  1. Suspected Absence: Measures are taken to protect the absentee’s property. Article 181 of the Civil Code addresses this phase.
  2. Declared Absence: A court can declare a person missing within a reasonable period defined by law.
  3. Declaration of Death: After a reasonable period, a court can declare the missing person dead.

Role of the Defender

A defender, similar to a defense attorney, represents the absentee. This individual, not necessarily a lawyer, acts as a provisional legal representative in legal proceedings. The defender is typically a close relative (spouse, adult child, or closest relative up to the 4th degree). If no relatives are available, the court appoints a solvent person of good standing, after consulting the Public Prosecutor.

Declared Absence (Article 183 of the Civil Code)

A person is considered legally absent if:

  1. One year has passed since the last news, or since their disappearance if they left a guardian with powers to administer their assets.
  2. Three years have passed if they left a mandate for the seizure of all their property.

Requirements for the Legal Declaration of Absence

A declaration of absence requires a request from an interested party legally entitled to do so, such as:

  • The legally separated spouse
  • Blood relatives up to the 4th degree
  • The Public Prosecutor, following a complaint
  • Any person with an interest in the absentee’s property

Effects of the Declaration of Absence

A legal representative is appointed to administer the absentee’s assets. This representative is usually a close relative. The representative has obligations regarding the management of the absentee’s assets.

Absentee’s Rights

An absentee retains inheritance rights, especially as a forced heir. If claiming inheritance through a representative, proof of the absentee’s life at the time of inheritance is required. If this cannot be proven, the inheritance portion goes to the other heirs or, if none exist, to the state. Descendants of the absentee may inherit through the right of representation.

Termination of the Declaration of Absence

The declaration ceases when:

  • The absentee reappears and proves their identity.
  • The absentee’s death is confirmed, either through actual death or a legal declaration.

Nationality

Nationality is the legal bond between an individual and a state. In Spain, nationality is acquired through:

1. Origin (by blood or birth in Spanish territory)

  • Born to a Spanish parent
  • Born in Spain to foreign parents, if at least one parent was also born in Spain (excluding children of diplomats)
  • Born in Spain to foreign parents who both lack nationality or if neither parent’s law grants the child nationality
  • Born in Spain with undetermined parentage (presumed born in Spain if their first known residence is in Spain)

2. Derivative Mode (Adoption or Choice)

Article 20 of the Civil Code grants the option of Spanish nationality to those under the guardianship of a Spaniard and those mentioned in Articles 17 and 19.

3. Certificate of Naturalization (Derivative)

Article 21 allows for naturalization by Royal Decree in exceptional circumstances based on merit.

Article 17 of the Civil Code

Individuals of Spanish origin include those born to a Spanish parent or born in Spain. Those whose parentage or birth in Spain is determined after age 18 have two years to opt for Spanish nationality.