Family Law in Spain: Marriage, Partnerships, and Legal Rights
Question No. 1
Mariola and Isidore have lived together as unmarried partners for twenty years in Salamanca, the birthplace of both. They have two children: Xavier, who is twenty and in his third year of journalism studies, and Ana, fifteen, who is studying second ESO. Javier is adopted; to conceive Ana, Mariola and Isidore had to resort to in vitro fertilization. Isidore is forty-five and Mariola is forty-three. Isidore’s net income currently revolves around 4,500 euros per month. Mariola abandoned her profession as a flight attendant when she had her first child and has since been devoted to the care of their children and Isidore. The floor of the living was bought by Isidore before starting to live with Mariola. Isidore and Mariola have decided to end their relationship, raising several doubts about the personal and economic situation of both after the break.
a) Is Isidore obligated to pay child support for their children?
For the youngest daughter, Ana, we must start with Article 39 of the Spanish Constitution (EC) and Article 108 of the Civil Code (CC), which establishes the equality of children, whether legitimate or not. This explains why, although it is true that the law provided for marriage crisis is not generally applicable to the situation of breaking the union, it is equally true that the substantive rules governing marital crises where there are children (Articles 92 to 96 of the CC) are applicable to the parent-child relationships that are created when unmarried couples break up. Therefore, both for marriage and for unions, parent-child relationships, the allocation of custody and visitation, and communications (Articles 90, 91, 94 in conjunction with Articles 154 to 160, Civil Code) are comparable, as is the maintenance of children born in the couple (Articles 93 and 142 et seq. CC) and even, as we shall see, regulation of the use of the home (Article 96 CC). As for the adult child, Javier, we assumed that the right recognized in the food arts. 142 et seq. CC is granted to certain persons (Article 143 CC) in need of basic necessities for sustenance, shelter, medical care, clothing, and education. Consider whether the conditions required for the emergence of this maintenance obligation (in the words of our Supreme Court, the maintenance claim requires the existence of a nexus of kinship between the feeder-alimentante and Article 143 of the Civil Code as well as a situation socio-economically viable in the first and the second-deficient Article 148 of the Civil Code [STS of 23 February 2000 (RJ 2000 \ 1169)]):
1) That between the claimant and who is obliged to provide the degree of relationship exists foreseen in Article 143 CC, while including the family relationship between parent and children (paragraph 2 of Article 143 CC). Our courts require that the duty to respect it by immediately feeding the fact of procreation [SAP Barcelona 4 December 2000 (JUR 2001, 110,533)]. It should be noted that Isidore is obliged to pay maintenance to their children even when Javier is of age. The fact that children have reached adulthood does not imply a necessary or automatic termination of the duty of food that his father has about it. Indeed, the age of the child only results in the termination of parental rights (Article 169 CC) is not provided, however, among the causes of extinction of the legal obligation of food upon arrival at the age of majority fueled by the child (see Article 152 CC). Moreover, Article 93, second paragraph, CC, enabled by a form expresses the possibility, within the litigation marriage annulment, divorce or separation, food fix ‘pro’ of the joint children of legal age. But in that provision are marked important and significant differences from the treatment given to such economic benefit when projected on the minor children subject to parental authority, as in this case, paragraph 1 of Article 93 expressed Code provides an unconditional right, to be automatically enacted even ( “The Judge in any case …»); on the contrary, paragraph 2 of the provision reviewed, and in regard to the children they already have passed the age of eighteen, put the sanction of their right to food at a series of conditions, in addition to its cleansing procedure, since these have to reside in the family home and have no own income, but also the remission that this provision makes to the arts. 142 and following the legal text itself implies another set of requirements added, and among them that the food is in training or has not finished because not on his part. Duty on subsistence food when their children have reached adulthood, our Supreme Court has held that the rights of children to provide food not automatically cease to have come of age, but if you keep persisting the situation need not attributable to them [ruling of 28 November 2003 (RJ 8363)]. Also, the STS of 5 November 2008 (RJ 2009 \ 3) requires that food to children are not extinguished by the majority, but the obligation is extended until the children reach economic sufficiency, provided that the need has not been created by the conduct of the son.
2) The economic potential of the bound, a condition which also concurs in this case, given the economic capacity of Isidore (Article 152.2 CC).
3rd) The need for food. As regards this third budget, it is necessary that those who claim the food is in a state of necessity, ie that can not be provided by himself properly maintained (Article 148 CC), demanding that the fed code no to exercise a trade, profession or industry (Article 152.3 CC), that the need does not come from their misconduct or lack of diligence (Article 152.5 CC), and who has not finished his training because he is fault (Article 142 CC). Consequently, until the children of Isidore complete their academic training and find a job or profession, his father shall pay the maintenance. Once Ana and Xavier complete their education and find employment, the father’s maintenance obligation shall be extinguished, even before, if not complete their studies because they are attributable. In this sense, many extinct resolutions declaring in favor of maintenance of adult children on the grounds that they must have completed their training, after long years of study, based on the degrees awarded [among others, SAP Vizcaya, 16 June 2004 (JUR 2004 \ 295,911)]. Once the stage of academic and professional training, in principle, our courts have held that no sufficient basis for the maintenance obligation remains in force. In the words of our Supreme Court [decision of 1 March 2001 (RJ 2001 \ 2562)], (…) two people, university graduates with full physical and mental capacity of over thirty years of age are not, today, and within a modern society and opportunities in a situation that can be defined by necessity, their creditors can make a food delivery, otherwise it would encourage a passive situation of struggle for life, which could to assume a “social parasitism”.
What factors are used to fix the quantity or amount of alimony?
In determining the amount of alimony, the essential criterion is clearly established by Article 146 of CC, whereby the amount of food will be provided to flow or means of the giver and the needs of the receiver. In this sense, a reiteradísima decisions of both the Supreme Court and of the provincial courts (among many, STS 5 November 2008 (RJ 2009 / 3), and the extensive case law cited therein), has declared that the amount of food must not only be proportional to mass flow or the giver, but also the needs of the recipient. In the above sense, the recent SAP Salamanca, Section 1 of 30 July 2009 (JUR 2009 \ 374,387) clarifies that this principle of proportionality is one of the most essential character of the maintenance obligation, for if it is is established for that food can meet the needs of life, clear and obvious it is to have a relationship with them, and it can not fail to take into account the flow to be provided so that the food is not imposed loaded beyond the means available to lift it, and yet not to let food be granted the appropriate extension of the maintenance needs. From these two bases for the fixing of food comes the principle of proportionality, already established in the 2nd law, Title 19, the 4th, accepted by the authors and supported by case law and recognized, as we have seen, by our legislation. The flow of the provider or media (see Article 145, “Flow” 152 “Fortune”) has, for these purposes, the income of both capital and labor, and even the capital itself, in a sense, their ability or opportunity to work. But, as has been said, the birth, survival and nutritional value of debt depends not only on the mass flow or who gives food, but also the need for food. These needs should be assessed in relation to the individual (although, since 1981, regardless of social position you and your family), in the realm of the necessary for the sustenance, shelter, clothing, medical care and education, according to the list of foods contained in Article 142.I of the CC, which contains a list of classic roots of human needs to be addressed with the provision of food, which serves as the basis for relationship calculating the amount of the pension, but without forgetting that the maintenance obligation is not specified in the participation-rate, as if it were an inheritance, which only occurs mortis causa – in profit or capital required, although the entity of these have to be taken into account in calculating its content.
b) Should alimony be fixed for Mariola by Isidore, considering they are an unmarried couple?
It raises the question whether it is appropriate to be imposed to Isidore payment of a pension to Mariola, to offset the economic imbalance that you will break it. To resolve this issue, we must turn to the criterion of the law, since there is no legal regulation of unmarried couples or state level or at the level of the Autonomous Community of Castilla y Leon (The autonomous with its own civil law, foral or special (except Basque), impose the payment of financial compensation for the cohabitant who, without pay or insufficient pay, have worked for the common home or to the other partner, in case of equity imbalance, also, this legislation autonomic provides for the payment of a periodic pension for one cohabitant who has been diminished his earning capacity. In this sense, ss. 13 and 31 of Law 10/1998 of 15 July, the Generalitat de Catalunya, art. 7.1.b) of Law 6 / 1999 of 26 March, the Cortes of Aragon, stable unmarried couples, art. 5, paragraphs 4 and 5 of Regional Law 6 / 2000 of 3 July for the legal equality of stable relationships and art. 9 of Law 18/2001 of 19 December, stable couples from the Balearics. Also, despite lacking Civil Foral or special laws establishing the compensation of partners of Extremadura (Article 7 of Law 5 / 2003 of March 20, a de facto partner) and Cantabria ( Art. 9 of the Law 1 / 2005 of 16 May, a de facto partner). The remaining laws of couples, cohabitants simply empower that, by agreement, establish the right to receive the financial compensation (in this situation are the domestic partnership laws in Andalusia, Madrid, Asturias, the Canary Islands and the Basque Country ). Finally, there is the case of the Valencian Law 1 / 2001 of 6 April, which regulates the unions, which foresees nothing about it). We must note that the Decree 117/2002 of 24 October, by establishing the Register of De Facto Unions in Castile and Leon, only addresses the administrative aspects of the registration in that Register, to be merely declaratory effect and non-constituent on the establishment and termination of domestic partnerships, as well as for contracts regulating personal and economic relations and its amendment (art. 5). Thus, the absence of agreement between the cohabitants, regulators of the effects of extinction of the union, and in the absence of legal regulation, we must turn to the decisions of the courts. Well, according to the jurisprudence, the de facto union is an institution that has nothing to do with marriage, Supreme Court decisions (full Court) of 12 September 2005 and October 19, 2006, and sentences Constitutional Court 184/90 and 222/92, for all, although both lie within family law. Even more: today, as we read the statement of 12 September 2005 – with the existence of gay marriage and unilateral divorce, you can claim that the de facto union is formed by people who do not wish at all contracting marriage and its consequences. From this budget, the case law rejects the analogy analogy-legislative-regulatory standards of the legal and economic consequences of the cessation of marital cohabitation, as is the norm of Art. 97 cc regulator of alimony to domestic partners, given the lack of identity between marriage rate and stable unions of couples that allow the extension rules [October 30, 2008 STS (TOL1.432.563)]. However, as stated by the recent Supreme Court decision of 30 October 2008 (TOL1.432.563) has sought and found a basis for the compensation of cohabitant who has been worsened their economic situation as a result of the breakdown of the relationship Figure of unjust enrichment. Indeed, we have found a basis for the compensation of cohabitant who has been worsened their economic situation as a result of the breakdown of the relationship in the figure of unjust enrichment, widely regarded, and gravitates around the so-called “lost opportunity” which would-as he explains the decision of 12 September 2005 (RJ 2005/7148) – “the factor that would support some way to replace the concept of “deteriorating “, to describe the imbalance.” So, if not proved unjust enrichment, it is obtaining financial compensation to the breakup of the couple. In this regard, the case decided by the STS of 8 May 2008 (RJ 2008/3345), is denied compensation because there is no evidence about economic insecurity occurring on the applicant after the cessation of cohabitation , or the performance of a work activity before starting the relationship, nor, consequently, that for this reason had to leave some work or employment.Was also not disputed that after the end of cohabitation is the plaintiff had found it difficult to find employment as has not been proven that it suffered a decline in income, or, finally, deteriorating economic situation. Lack of proof, therefore, the budgets that under-as-inspiring principle of the doctrine of unjust enrichment justifying the compensation for the economic imbalance suffered as a result of the termination of the relationship. The same law has explained further that the enrichment as the best doctrine notes, occurs not only when there is an increase in the assets or receipt of a shift of assets, but also when there is an undiminished heritage ( “damnun cessans “) and that the impoverishment need not always be to the shedding of assets, since what may be the loss of expectation and the abandonment of the activity for personal gain for the dedication for the benefit of another [STS of 30 October 2008 (TOL1.432.563)]. As defined in the Case of 8 May 2008 (RJ 2008/3345), there are certainly other arguments can justify the appropriateness of financial compensation in cases of imbalance after the cessation of marital cohabitation mode. They are based, in some cases, the general principle of protection to the injured party rooted in the constitutional principle that affirms the dignity of the person and the personality development of free-article 10.1 of the Constitution, which puts the spotlight not on the fact whether they have made financial contributions or has suffered an impoverishment, but in the fact that there were significant increases in the daily living heritage and dedication to work and home care, leaving the cohabitant who has paid out of any economic benefit. Based on data of the statement, it is noteworthy that during the years of cohabitation, Mariola is dedicated to his children and his partner, taking care of the family home, without the benefit of economic independence, so that following the breakdown of cohabitation, has clearly been damaged in comparison to the situation prior to the termination of the union, to occupy a weaker position, which may be worthy of protection. There is also evidence of the existence of an enrichment of Isidore, which has acquired considerable wealth, a result of their economic effort and greater commitment to the children Mariola and common home, leading to correlative impoverishment following Mariola ceased to cohabit, and may authorize financial remedies [about, STS of 30 October 2008 (TOL1.432.563) also among the most recent SAP of Barcelona, 12th of November 21, 2008 (TOL1.442.016)]. In this sense, the SAP of Salamanca on 30 July 2009 (JUR 2009 \ 374,387) estimated that the fixing of alimony in this case is correct and consistent with law, to the extent that there are requirements unjust enrichment, primarily those relating to the requirement of the existence of an undiminished heritage of the defendant ( “damnun cessans)”, which was aided by the dedication of the defendant to the family and childcare as well as the requirement for loss of expectation and cessation of activity for personal gain by the defendant for the dedication for the benefit of their partner. In that sense, common ground that the defendant was a flight attendant by profession, and that after learning the defendant left his profession to devote himself to the family that he formed, followed by his numerous and distant destinations, family that eventually born in two children who currently have six years of age.That dedication of the plaintiff to defendant, the former losing their jobs, can benefit from this, that otherwise could not have enjoyed living with the defendant nothing more than a few times, given to the profession of the same of stewardess flight, and was also for the same injury as he shook off his contact with the workplace, thereby increasing the difficulties of returning to the same. According to the above, and answering the question of whether or not fixed for alimony by Mariola and Isidore, we must conclude that the case law supports the determination of alimony in cases of unmarried couples, but so long as they give the necessary requirements to be carried out to establish the board, on the basis of the doctrine of unjust enrichment, or the general principle of protection to the injured (SAP of Salamanca on 30 July 2009 ( JUR 2009 \ 374387).
c) After the cohabitation of unmarried partners ends, what is the legal regime for the granting of the use and enjoyment of the family home?
Based on the lack of a general state law on unmarried couples, and that autonomous law nor do we have in the Community of Castilla y Leon on unions, we must turn to the decisions of our courts to resolve this issue. The courts arise if applicable or not, in analogue to unmarried couples art. 96 of CA rules that establishes the legal allocation of use and enjoyment of the family home, in cases of marital stress. This rule differs depending on whether or not there are children in marriage: In the absence of agreement of the spouses approved by the judge, the use of the family home and the objects of ordinary use it is for the children and spouse in whose company remain. When some of the children remaining in the company of one and the remainder in the other, the court shall decide as appropriate. Not having children, agree that the use of such property, as long as prudently be set, corresponding to a non-title spouse, provided that, in the circumstances they did advisable and interest were the most need of protection. To provide housing and property indicated the use of which corresponds to a non-title spouse consent is required of both parties or, where appropriate, judicial authorization. According to art. 96 CC, having children, as happens in the case, the use of the family home and the objects of ordinary use, is for the children and spouse in whose company remain. Well, our courts are estimating that there minor children, the substantive rules governing marital crises (arts. 92 to 96 of the CC), are applicable to parent-child relationships that are created when unmarried couples occurs the breakdown of cohabitation “more uxorio.” Thus, a broken relationship and Mariola coexistence of Isidore, the cohabitant who is credited with the care and custody of their youngest daughter, Ana, get the attribution of the use of family flat. Moreover, the absence of children in the husband, the court decisions are attributing the use of the family home owner to live-not through the analogy of art. 96 CC to unions more uxorio [STS of 16 December 1996 (RJ 1996/9020) (This sentence attributes the use of family housing owned by the man, for a period of two years, the woman, in a case in that cohabitation had lasted for about three years and in which the three sons joined the woman had his previous marriage dissolved)] or based on general principles of law [STS of 10 March 1998 ( RJ 1998/1272) (This decision resolves the case of some cohabitants who had purchased half the housing and parking, then sick women, which follows, by agreement between the cohabitants, the use of housing, furniture and parking, following the breakdown of cohabitation)].However, the Supreme Court’s recent ruling of 30 October 2008 (TOL1.432.563)], to the claim for women’s use of the family home had been in a case of coexistence of fact for seventeen years without children, has found that, as with spousal maintenance or the allocation of assets acquired during the cohabitation, for the allocation of family housing using the analogy of art. 96 CC is excluded.
d) Does the current Law on Assisted Human Reproduction state that members of a domestic partnership are subject to these techniques or only provide for the application of those rules to the wedding?
The Law 14/2006 of 26 May on assisted human reproduction techniques in his art. 8.2, provides that the unmarried man gives consent prior to fertilization with the use of techniques, the same way as provided for in art. 6.3 for married women.
What age requirements must be met by members of an unmarried couple to adopt a child?
3rd Additional Provision of Law 21/1987, of 11 November, which amended the Civil Code rules on adoption, provided that references in this Act to the ability of spouses to simultaneously adopt a child will also apply men and women members of a couple permanently united by effective relationship similar to marriage. The reference to men and women, once adopted the Law 13/2005 of 1 July, has to be interpreted as referring both to the marriage of a man and a woman, like those composed of two women or two men (Provision Additional first Law 13/2005). To determine the requirements to be met by members of an unmarried couple to adopt, we must turn to art. CC 175.1, which governs the joint adoption by two spouses, provides as follows: Adoption requires that the adopter is greater than twenty-five years. The adoption by both spouses is sufficient that one of them has attained that age. In any case, the adopter must have at least fourteen years older than the adoptee. Therefore, applying this rule to domestic partners, the age requirements to adopt are two:
- That at least one spouse adopter is greater than twenty-five years (art. 175.1 CC);
- That the two partners are actually adopting at least fourteen years older than the adoptee.
Question No. 2
Mª del Mar, who is twenty years old, has been diagnosed on 15 September this year, by specialists in psychiatry, as patients with neurotic personality traits immature. Maria del Mar has hidden these medical reports her boyfriend, Robert, because he is afraid that to know them, it does not want to marry her. Robert has thirty years and is the cousin of Maria del Mar. The couple want a civil marriage and would like the ceremony held the father of Robert, who is councilman in the city of Cadiz.
a) Is there any impediment to María del Mar and Robert getting married?
In principle, and except as explained in the following question about the mental illness of Maria del Mar, there is no impediment to the couple to marry because, although they are cousins, the impediment of kinship, in line side, reaches to the third degree (uncle / nephew to “/ a) and M ª del Mar and Robert are blood relatives, in a collateral line of the fourth degree (art. 47.2 CC).
b) Does the mental illness of Maria del Mar prevent her from validly getting married?
As explained in Module 2 (p. 13), mental illness is not a cause of invalidity of marriage itself, which means that our system validates marriage performed by a mental patient, whether or not disabled, yes provided that, at the time of entering into marriage, enjoy natural ability to understand and want to provide matrimonial consent. In this sense, the existing paragraph 2 of Article 56 of the Civil Code, in the event of being found in the file prior to civil marriage as “one of the spouses were earmarked for mental deficiencies or abnormalities,” requiring “medical opinion on their ability to give consent. Throughout this opinion, what is valued is the ability of the mentally ill present to issue the marriage vows with sufficient understanding and knowledge of the facts (Lacruz Berdejo). Therefore, mental illness can lead to the consent given is invalid, when he marries is not in perfect use of their mental capacities. According to this law, Maria del Mar may contract a civil marriage if the judge in charge of Registrar to instruct the corresponding file authorizes prenuptial marriage, in light of the opinions delivered by the coroner. This opinion will require the judge to the medical examiner, but may be supplied by the personal interview conducted by the first in the marriage record, since the intuitive perception that you may receive the civil registrar of the patient’s mental capacity is not sufficient to discern an element essentially technical or scientific nature, as is the existence of will and knowledge to consent to a marriage [Álava SAP of 7 December 2004 (JUR 2005/56995)]. The judge’s decision authorizing or denying the marriage, should come based on the current ability of spouses to understand the significance of the act intended to celebrate. As the RDGRN of 30 June 2006 (JUR 2006/7457) has been the legislature will take as a parameter for assessing the ability to access the marriage of a person of their natural capacity to consciously provide matrimonial consent ( vid. art. 45 CC). Similarly, the SAP of Madrid of 10 January 2003 (JUR 2003/92883) said that the Civil Code does not require, in order to the validity of marriage, which the partners are in optimum enjoyment of his intellectual faculties or mental, enough, the fact that they are capable of discerning enough to know the importance of the commitment they purchase, and stating his free decision to accept it. Therefore, if the judge understands Maria del Mar has the natural ability needed to issue the marriage vows, the marriage will autorizada.Pues well, in a similar case brought here, in which the wife had been diagnosed before entering Marriage as neurotic personality traits immature, the SAP of Barcelona, 12th of 21 February 2001 (AC 2002 \ 406), believes that it was not established the loss of intellective and volitional capacity to marry. According to the Provincial Court of Barcelona, in none of these reports will see any type of mental illness incardinated in endogenous disabling disorders to determine the extent of the essence and obligations of marriage, or the inability to govern his own person , specifying that the absence of any evidence relied upon to assess the nullity and, on the contrary there are a number of events indicative of the freedom of the provision of informed consent, which the absence of impairment in the record of marriage (as the “ius wedlock “of art.56 cc, or even proficiency said medical opinion) …. In any case, if the trial judge to instruct civil registry file does not require premarital medical opinion, or this is unfavorable to the ability of M ª del Mar for marriage, and marriage is allowed, the subsequent declaration of nullity of marriage held by the wife’s mental illness may also decreed that it is proved that lack of capacity of the contracting party. Indeed, when reviewed medical opinion is favorable, binding on the judge, who must consent to the marriage, which does not preclude the request for revocation, if the opinion was wrong, for lack of marital consent (art. 73.1 ° CC) . In both cases (absence of favorable medical opinion or character) to annul the marriage must be credited to the spouse who suffer from any mental problems or anomalies in our case, Maria del Mar, having consented marriage seriously affected his mind and will as a result of their illness and could not therefore know and love the act being done (STS of 14 July 2004 TOL483.505).
Does the fact that Mª del Mar has concealed her psychic disease from Robert prevent her from validly getting married?
Moreover, if Mª del Mar decides to hide his condition to her future husband, the marriage to take place may be declared invalid, according to the fourth cause of art. 73 cc, ie, by mistake in the personal qualities of cónyuge.Este error vitiates the consent given at time of marriage and affects key aspects of the personality of Maria del Mar, existing at the time of the conclusion and that as unknown rise to a mistaken belief Roberto. Our courts understand that the personal quality is predicated of both the physical dimension of the individual and the psychic, including here mental deficiencies or abnormalities that do not impede or hamper the issuance of a valid consent on the part of those who suffer, anomalies in any case have to be before marriage, permanent and certain entity, so that make this impossible or at least relevantly impede the normal development of married life [STS of 18 September 1989 (RJ 1989 \ 3618) and SAP Seville, 9 June 2004 (JUR 2004 \ 212,925)]. As we see, the mental disorder must be permanent and of a certain severity, estimated predicable circumstances, for example, paranoid schizophrenia [SAP Burgos, 28 January 2002 (AC 2002/787)].
c) What procedures must Maria del Mar and Robert follow to get a civil marriage?
Maria del Mar and Robert should encourage marriage processing the case. The record of marriage is a formality prior to marriage, which took place before the civil registrar in order to monitor the attendance of legal budgets. In this sense, art. 56 cc, in its first paragraph, order that those who wish to marry previously credited, in case handled under the law of the Civil Registry, which meet the capacity requirements set forth in this Code. The investigation into this case for the Circuit Court Judge, the Magistrate under the direction and delegation of that, or to the Registrar for the consular public place where any of the parties (sections 238 and 239 RRC). Submission initial submission, and after publication of the banns or proclamations, or replacement of this procedure by the hearing, evidence shall be undertaken or agreed to craft proposals designed to establish the status, capacity or domicile of the parties or any other extreme requirements (art. 245.1 RRC). Furthermore, the instructor shall hear both parties privately and separately to ensure the absence of impairment of ligamentous or other legal obstacle to the conclusion (section 246 RRC). The record ends with an order of approval or denial of the marriage, against which appeal lies in administrative remedies (art. 247.2 RRC).
Can a councilor of a municipality celebrate a marriage?
The councilors of the municipalities are competent authorities to hold civil marriage, as the art. 51 CC supports the possibility that the deputy mayor in the marriage councilor. For what the council have no jurisdiction, neither the mayor, is examining the case for premarital, since, as already indicated, the record of marriage is a formality prior to marriage, which took place before the Judge in charge of the Civil Registry (In this regard, DGRN Instruction of 26 January 1995 establishing guidelines on approval of civil marriage by Mayors (BOE of 10 February 1995, pp.. 35, p. 4456).
d) What are the differences between a civil marriage and a marriage celebrated in canonical form?
Premarital Dossier
:
CIVIL MARRIAGE: In Section II of Chapter III of Title IV, which is intended for the civilian form of marriage celebration, art. 56 cc, in its first paragraph, order that those who wish to marry previously credited, in case handled under the law of the Civil Registry, which meet the capacity requirements set forth in this Code. The investigation into this case for the Circuit Court Judge, the Magistrate under the direction and delegation of that, or to the Registrar for the consular public place where any of the parties (sections 238 and 239 RRC). Therefore, the file must be processed prior marriage forced into a marriage celebrated in a civil (art. 56, first paragraph, CA).
CANONICAL MARRIAGE: The marriage celebrated in canonical form, is not required in this investigation prior to the judge for the Civil Registry, referred to art. 56, first paragraph of CC. This is so because the terms of the Agreement on Legal Affairs signed between the Spanish State and the Holy See on 3 January 1979. Specifically, Article VI, paragraph 1 of this Agreement: The state recognizes the civil effects of marriage celebrated according to Canon Law. The civil effects of canonical marriages occurring since its conclusion. For the full recognition of them will require registration in the registry office, which will be practiced with the mere presentation of ecclesiastical certification of the existence of marriage. As we see, at any time require that the intending spouses of a canonical marriage, the procedure shall encourage marriage before the civil registrar for the purposes of assessing the capacity requirements set forth in the Civil Code. Under the rule, the state recognizes the civil effects of marriage celebrated according to Canon Law since it is held (art. VI). As explained Gullón Díez-Picazo and it is clear that marriage in canonical form involves first complying all the substantive conditions required by Canon Law, but “continue the authors, the Civil Code does not mind, but only the provision of consent. Thus, spouses wishing to marry must first demonstrate non-canonical, before the judge in charge of the Civil Registry, which meet the capacity requirements for marriage. A different matter is that the Catholic Church to perform a pre-processing required before the parish (providing baptismal, proof of having made a premarital course, etc.). But this is not obviously the case premarital regulated in art. 56 of the Civil Code.
AUTHORITIES:
CIVIL MARRIAGE: As laid down in Art. 51 of the CC, are competent authorities to hold civil marriage:
– The judge hearing the civil registry and in the municipalities not residing in the judge, the officer designated by regulation – the mayor of the municipality where the marriage is concluded, if the partners expressed their wish to do so during the pendency of the case premarital ;
– It is also possible that the mayor may delegate to a city councilman;
– And the diplomatic or consular officer responsible for civil registration abroad.
CANONICAL MARRIAGE: According to canon 1108 § 1 of the Code of Canon Law, only those marriages are valid which are contracted to the Ordinary or the pastor or priest or deacon delegated by either of them to attend, and before two witnesses according to the rules established in the following canons, and subject to the exceptions being concerned in the cc. 144, 1112, 1116 and 1127.
REQUIREMENTS, CAPACITY AND IMPAIRED:
CIVIL MARRIAGE: capacity requirements and constraints that affect the contracting of a marriage in civil form are specified in the Civil Code (art. 44 et seq.). In this sense, art. 56, second paragraph of CC, to regulate the record prior to marriage, says that those who wish to marry previously credited, in case handled under the law of the Civil Registry, which reúnenlos capacity requirements set forth in this Code.
CANONICAL MARRIAGE: The marriage celebrated in canonical form, given the terms of the Agreement with the Holy See of 3 January 1979 on Legal Affairs, the State recognizes the civil effects of marriage celebrated according to Canon Law since it is held (s. . VI), without requiring, as we have seen, the handling of the case before the judge for premarital Civil Registry, which aims to check if the partners meet the capacity requirements set forth in the Civil Code. Therefore, the requirements of capacity and lack of impediments are regulated by the norms of Canon Law (canons 1073 and ff. Of the Code of Canon Law).
CIVIL REGISTRATION REGISTRATION:
CIVIL MARRIAGE: A civil marriage registration refers, in particular the art. 62 cc, according to which, the judge, mayor or official to whom marriage is held extended, held immediately after the entry or the corresponding record with his signature and that of the parties and witnesses. It carried the inscription or extended the record, Judge, Mayor or official shall deliver to each of the contracting document evidencing the conclusion of matrimonio.En otherwise governing rule of Art. 61 cc, according to which the Civil Registration is required for full effectiveness against third parties.
CANONICAL MARRIAGE: also applies in this case the rule referred to Art. 61 cc, of the need to register the marriage to produce full civil effects. Thus, once the marriage before the ecclesiastical authority, for the full recognition of the effects of marriage shall require the registration in the registry office, which will be practiced with the mere presentation of ecclesiastical certification of the existence of marriage (art. VI of the Agreement on Legal Affairs with the Holy See). In this regard, the Final Protocol of the Agreement of 1979, provides as follows: Immediately after the marriage canon, the priest who was held to give spouses the ecclesiastical certification with the information required for registration in the registry office.And in any case, the parish priest in whose territory the marriage, within five days, transmit to the Registrar in charge of which the record of the marriage canon, for timely inclusion in the event that it is not already made at the request of interested parties. On the question of the effects that lack of registration in the registry office of a marriage celebrated in the canonical form of religion has been pronounced in our Constitutional Court ruling of 15 November 2004 (RTC 2004 \ 199). The Constitutional Court in this decision understand that the purpose of causing widow’s pension should be considered a surviving spouse who was married but then he had not been registered, as indicated by registration can not be considered under our law with constitutive effects.
QUESTION No. 3
Sebastian, who is eighty-five, wants to marry Claudia, of twenty years and Romanian citizenship. Over the past four years, Claudia has been taking care of Sebastian in the latter’s home in Madrid. In exchange for this care, Claudia has lived in Sebastian’s house and had enough to live and even able to send their parents, who live in Romania, some 400 euros per month, which betrayed him Sebastian. Sebastian is in hospital, suffering from a serious disease. The doctors have told her remaining few days of life. Sebastian believes that if he married Claudia, his death, it may receive a survivor’s pension from Social Security.
a) deal Sebastian and Claudia must file prior to marriage to get married?
Given that Sebastian is in imminent risk of death, it is to contract marriage with Claudia called ‘in articulo mortis, “that is, marriage in danger. Marriage in danger of death requires the prior conduct of the marriage record: In principle, it is not necessary to hold the marriage to obtain prior medical opinion on the ability of patients to marriage (art. 56.2 CC). In this sense, the DGRN has declared that the need for prior medical opinion on the ability to marry is limited to cases in which “either party were earmarked for deficiencies or mental abnormalities’, with no doubt that authorizing the marriage if the judge itself a physical illness has sufficient awareness of marriage, there is no reason to require a corroborating medical certificate, which is not compaginaría with the urgency of all marriages in danger of death [Resolution of 10 September 1999 (RJ 1999 \ 10139) and 11 February 2003 (RJ 2003 \ 4025)]. Supports the recording of a marriage in danger of dying of a contracting party of 90 years of age who was of sound mind but in poor physical condition which prevented it from moving from his home, where his serious condition and being in danger of death, RDGRN of 11 February 2003 (RJ 2003/4025). Also, the RDGRN of 16 March 1992 (RJ 1992/2570) requires the registration of marriages contracted by a person confined in the Intensive Care Unit of a Hospital in critical condition, under intense medication and mechanical ventilation , who could not speak and communicated only through signs and nays made with the head, to record a certificate from the Chief of Critical Care Medicine Hospital in stating that the patient was on the same day he had place the link in use of his mental faculties and that, in view of this certificate, the civil registrar Judge proceeded to allow the marriage, in the presence of the parties and two witnesses, getting the appropriate record by the Registrar.The uniqueness of marriage in mortal danger is that it requires prior authorization for formation of marriage record, but the presence, at the time of its conclusion, two adult witnesses, unless prevented accredited (art. 52 CC) . As indicated in the RDGR of 8 June 2005 (TOL662.872) in cases of danger of death should not, for reasons of urgency, examine the case prior to the celebration (cf. art. 52 cc) of so that the verification of the absence of obstacles to the marriage is often postponed to the subsequent registration of the minutes from the Civil Registry. To the extent that the record is not processed before the registration of marriages in civil form held in danger of death requires the check, before registration, which converges the legal requirements for the conclusion (section 256 of the Rules of Civil Registry). How has clarified the DGRN in its resolution of 19 January 2004 (RJ 2004/2788), to register a marriage in civil form held in danger of death is necessary, since it has not been processed the previous record, it is found, before registration, which converges the legal requirements for the celebration (cf. art. 65 CC), which has to be done by qualifying the report drawn up and additional appropriate statements, leading to the conclusion that there is no doubt the reality of the fact and its legality (cf. art. 256 RRC), or by file, when not issued the appropriate certificate (cf. art. 257 RRC). Therefore, if Sebastian and Claudia married ‘in articulo mortis “under Art. 52 cc should not be examining the case prior to marriage.
Can you celebrate the marriage of Sebastian and Claudia a hospital doctor in which the first is entered?
Doctors at a hospital are not authorities to celebrate a marriage in danger. The authorities competent to solemnize a marriage in danger of death are established in the art. 52 cc, namely:
1. The Judge in charge of the Civil Registry, the delegate or the mayor, although the parties did not reside in the respective constituency.
2. In the absence of a judge, and for the military campaign, the Chief Officer or supervisor.
3. For marriages taking place on board ship or aircraft, the Captain of the same.
Not included, as we see, the doctors of the hospitals where the partners are admitted in danger of death, so that the marriage of Sebastian and Claudia can not be held before a doctor at the hospital in which the first is entered .
b) Would it be valid the marriage of Sebastian and Claudia?
Using data set, we would estimate that this is a marriage of convenience, in which the partners provide consent under simulation, ie without actually want to marry, but to get other purposes: Claudia Sebastian compensate for care provided and Claudia, would be to regularize their stay in Spain and then in the short term of one year, obtain Spanish nationality, under art. 22.2.d) CC, and receive, where appropriate, a widow’s pension. If it were to estimate that marriage is simulated, because it is a marriage of convenience, this would be an invalid marriage, absence of consent for marriage (art. 73.1 ° CC), since there is no spouse will celebrate the marriage assuming the obligations under the agreement, contained in art. 67 and 68 CC. The simulation assumes that both parties give their consent without a real intention to marry.As explained Díez-Picazo y Gullón, this agreement simulatorio left devoid of meaning to the consent given, which in fact can not be called marriage vows, being a mere appearance. Now, for the marriage was declared void because of this, would have credited the lack of real consent of either spouse. Being a fact which they belong to the intimate sphere of the parties reserved the proof of this fact required to attend the presumptive nature of the test article 386 of the LEC based on the valuation of the earlier acts, contemporary and after the marriage in question. In this sense, Pontevedra SAP of 28 March 2005 (AC 2005/2048) considered allowing circumstances involved admit the existence of true marital consent, such as having intense emotional relationship between the litigants with cohabitation before marriage The appraisal of demonstrations of love and affection between the two partners by family and friends, good relationship between the defendant and her sister and her mother, with phone calls to the mother of the actor even after separation in fact (…). Even the fact that the defendant, following the abandonment of the marital home (which claims to have made for disagreements arose with the actor), returned to prostitution, is liable to be assessed as a fact clearly demonstrated their will is contrary to assume the obligations of marriage and in articles 67 and 68 of the Civil Code, whenever the duration of living together did not exercise this work, which produced the separation of fact, obviously had to be developed by the means of life and also to financially help his family in Colombia. In conclusion, in principle, the marriage of Sebastian and Claudia will be valid unless it is shown that spouses matrimonial consent provided under simulation.
c) In accordance with the provisions of the Act de facto union of the Community of Madrid, “Sebastian and Claudia meet the requirements to be considered unmarried partner, and what are the requirements?
In accordance with the provisions of Law 11/2001 of 19 December, in de facto unions of the Community of Madrid, the requirements to be considered unmarried partner, being then apply the legal provision, are:
– Living with a partner, in a free public and notorious, with stable relations, at least for a continuous period of twelve months, and there is a relationship of affection (art. 1.1).
– At least one partner must have registered and found his residence in Madrid (art. 1.2).
– The partner must be of legal age to be emancipated, and not be affected by an impairment or mental disorder that prevents his consent to the marriage validly (Art. 2.1.a).
– The partners may not be linked by the bond of marriage, unless they are separate courts (Art. 2.1.b).
– The partners may not form a stable union with another person (art. 2.1.c).
– There shall be straight relatives by blood or adoption (art. 2.1.d) or collateral relatives by blood or adoption within the third degree (section 2.1.e).
– Registration of marriage in the Register of De Facto Unions in the Community of Madrid (art. 1.1).
Therefore, if Sebastian and Claudia are entered in the Register of De Facto Unions in the Community of Madrid, will be eligible to be considered domestic partner for purposes of implementing this legislation.
d) Only the widowed spouse is entitled to a widow’s pension under the Social Security and also the survivor of a cohabiting partner?
Since the General Act on Social Security was amended by Law 40/2007, of 4 December, on measures concerning social security survivor’s pension is recognized not only spouses but also widowed survivor of a cohabiting couple indeed. Before this reform, recognition of widow’s pension was on condition that the beneficiary Evidence of lawful marriage with the deceased subject, what excluded as beneficiaries of the pension for widows who are forced into situations of coexistence or more uxorio stable unions of couples. As we say, following the reform set out by Law 40/2007, art. 174.3 of the Revised General Act on Social Security, has come to recognize the right to survivor’s pension to unmarried couples who meet certain requirements of stable and notorious cohabitation for at least five years, which added to economic dependence on certain percentages. The cited art. 174.3 of the Revised General Act on Social Security, according to the wording given by Law 40/2007, of 4 December, on Social Security matters, the purpose of recognizing the right to survivor’s pension to survivor of a cohabiting partner, besides requiring compliance requirements are high and trading planned for the event of marriage, and income limitations of the potential recipient cohabiting, requires that the cohabitant was united in the cause time of death, forming a domestic partnership. The requirements to consider that we have a domestic partner for purposes of granting survivor’s pension are established in the rule itself, which reads as follows: 3. (…) For the purposes of the provisions of this paragraph, shall be considered the established domestic partner with a similar emotional relationship to marriage, by whom, not being barred from marriage, are not marriage with another person and demonstrating, through the appropriate certificate of registration, a stable coexistence with immediate and visible to the death of the deceased and with an uninterrupted period of not less than five years. The existence of domestic partnership shall be established by certification of registration in any of the specific records that exist in the autonomous regions or municipalities of residence or through a public document attesting the establishment of such a couple. The above mentioned registration for the formalization of the public document shall have been produced with a minimum of two years in advance regarding the date of death of the deceased. In the autonomous communities with their own civil law, fulfilling the cohabitation requirement referred to above, consideration of domestic partner and their accreditation will be carried out as established by specific legislation. Therefore, upon the death of Sebastian, Claudia will be entitled to a widow’s pension by Social Security, whether you are married and if they choose to continue in a situation of mere coexistence in fact, provided that in both cases, attend the requirements of the Social Security legislation. Thus in the case of Sebastian and Claudia did not marry, to be eligible for widow’s pension should have stayed living together for at least five years at the time of the death of Sebastian shall also be credited to account of domestic partnership, by a certificate of registration in any of the specific records that exist in the autonomous region or municipality of residence or through a public document attesting the establishment of such a couple, made with a minimum of two years in advance with regarding the date of death of the deceased.
QUESTION No. 4
Jesus, who is Spanish and has forty years, and Bruce, who is thirty years old, is Jewish and American nationality, living in Valencia for three years. Jesus is judicially separated from his wife, Miriam, but not divorced. Bruce is a bachelor. The couple is thinking about marriage and Bruce would like to go for the Jewish ritual. Miriam is in a dire economic situation as the company where he worked closed, he has exhausted unemployment benefits and can not find work.
a) Is there any impediment to the marriage of Jesus and Bruce?
Yes, the link impairment ligamentous or prepayment (art. 46.2 º CC), because Jesus is only legally separated, so their marriage has been dissolved (by divorce or death of other spouse), or declared invalid. This impediment is not dispensable and the invalidity of remarriage, pursuant to Art. 73.2 CC [in this sense, STS of 16 April 1984 (RJ 1984/1947) and RRDGRN of 14 December 2000, December 4, 2002 and 8 June 2005 (TOL662.872)]. If Jesus married without obtaining the dissolution of previous commit further crime, given that according to Art. 217 of the Penal Code, who shall contract a second or subsequent marriage, knowing that legally remains above, shall be punished with imprisonment from six months to one year. While Jesus was still married, you can not therefore remarriage with Bruce, because in processing the case before the civil marriage is essential that the trial judge, assisted by the Secretary, to ensure the absence of impairment of ligamentous or other legal impediment to the celebration (cf. art. 246 RRC). However, if the marriage took place, not valid, for attending the impediment of prior bond or ligamentous. However, the marriage can take place between same sex, although the national law does not permit overseas. Under constant criterion of the Directorate General of Registries and Notaries, marriage between a Spanish and a foreigner, or between foreigners resident in Spain the same sex shall be valid, by applying Spanish material law, although national legislation of a foreign non permitted or not recognize the validity of such marriages (Resolution-DGRN Circular of 29 July 2005 and Resolution (6th) of the management center of 1 June 2006, RJ 2007/3175). In accordance with these resolutions, after the entry into force of Law 13/2005 of 1 July, the possibility of marriage between same sex has joined the Spanish international public double in capacity, so that the laws of an EU country that do not support marriage between same gender, undermine the international public order “Spanish” and therefore can not be applied in Spain.
b) Can Jesus and Bruce married in Spain by the Jewish ritual?
In the case of mixed marriages, ie between an alien and a Spanish, art. 49 cc allows the marriage takes place inside or outside of Spain in accordance with the form prescribed in the Spanish legal system, that is, marriage can be contracted in civil form (before the Judge, Mayor or official designated by the Code) or in the religious form legally provided (canonical form, Islamic, Jewish or Protestant). However, in these cases of mixed marriage can not be what is the celebration of marriage in Spain under the form established by the personal law of the foreign contracting party, as this option only possible when both are foreigners (art. 50 CC) . However, in the case, the Jewish celebration as is permitted, as a recognized religious forms in Spanish legislation (article 7 of Law 25/1992 of 10 November, laying approves the Agreement of State Cooperation with the Federation of Israelite Communities of Spain).
“Marriages in Spain by the Jewish ritual are inscribed in the Registry Office?
As provided in Art. 61 cc, which regulates the registration of marriages in the Civil Registry: Marriage produces civil effects of its conclusion. For the full recognition of them will require registration in the registry office. Marriage is not registered shall not prejudice the rights acquired in good faith by third parties. For the Jewish couple (and so is the Gospel), after issuance of the certificate of marriage and the marriage, the registration of marriages in the Civil Registry will only require the registrar to qualify the formal requirements of celebration (Article 7 of Law 25/1992 of 10 November, approving the Cooperation Agreement between the State and Federation of Jewish Communities in Spain). As for the effects that the registration of marriages in the Civil Registry, we must say that performs the function of producing the full recognition of the effects of marriage held against third parties: If the Civil Registration does not occur, third parties in good faith, that is, those who are unaware of the marriage, act as if marriage had not been concluded. Therefore, the registration, albeit mandatory, only required “for the full recognition” of the effects, so that a failure to register “shall not prejudice the rights acquired in good faith by third persons” but not imply, but rather who have not married to estimate as to which he is legally effective and [RDGRN of 11 April 1985 (RJ1985 \ 3496)]. The effects caused by lack of registration in the registry office of a marriage in the evangelical religious form, is expressed by our Supreme Court in a ruling issued by the Social Chamber on 15 December 2004 (RJ 2005 \ 2170). The contentious issue centered on whether a person married by the rite Gospel, but whose marriage was not entered in the registry office, was entitled to widow’s pension by Social Security. For the High Court there is no doubt that that marriage is not registered and in principle there was the peculiar effects of it (in the case, understand that the plaintiff was married to the cause of benefit claims). The Supreme Court ruling that stated in this article. 61.1 of the Civil Code stipulates very clearly that “civil effects of marriage from its conclusion, which means, according to the most authoritative doctrine, that the requirement of registration is a formal requirement that provides guarantees to third parties, but not prevents the production of the civil effects between children and their spouses or other purposes, saving the fact that, as stated in paragraph 3 of the same precept “marriage does not prejudice the rights acquired in good faith by outsiders”, then a marriage concluded and entered no civil effects except those involving rights acquired in good faith by third parties.
c) Is Jesus obliged to pay maintenance to Miriam?
Between spouses there, according to art. 143 CC, the obligation to give each other food, subsisting obligation once produced the separation-either judicial separation or, if there are other legal requirements of the arts. 142 et seq. the CC, since the separation does not extinguish the marriage, which only goes to divorce (art. 85 CC). In this regard, case law has established repeatedly that the right to food is not lost in the case of de facto separation freely consented. Thus, asthe Court has stated in the statement of 25 November 1985 (RJ 1985/5980), in normal situations in the development of marriage, with full compliance by the spouses of the duties laid down in Articles sixty-seven and sixty eight of the civil code, debt relief food or material between them is covered by the broader help lift the burdens of marriage under Articles mil trescientos dieciocho, thirteen hundred sixty-two, second cause thousand four hundred thirty – eight, when the unit has been broken by mutual life enter the fray under article one hundred forty-three, and in that sense the latest jurisprudential orientation in line of which are expressive sentences of twenty-eight of February, nineteen hundred and nine sesenta (RJ 1969 \ 1035) and seventeen of June, nineteen hundred seventy-two (RJ 1972 \ 2745), understands that the actual separation between the spouses freely consented, although it involves an anomalous situation and incompatible with the duties imposed by marriage Current Article sixty-eight, which leads to consequences that are not legally protectable, why not deprive either spouse in the circumstances of the case, to receive food from his spouse under the rules contained in sections one hundred and forty and two following point of view that has to be reaffirmed in light of reporting guidelines of the reform of seven of July, nineteen hundred and eighty-one persons in divorce cases the application of guilt (Article eighty-six ). In the above sense, the Supreme Court has stated that the maintenance obligation between spouses remains until the divorce is decreed. Thus, as noted by the STS of 23 September 1996 (RJ 1996/6731) in relation to the maintenance debt that the husband was paying the wife the divorce, spouses are no longer disappears legal reason food , for this reason, food and sentence loses its effectiveness, regularly coming to the new situation matrimonial law and divorce that is issued thereunder. In similar terms, the STS of 29 June 1988 (RJ 1988/5138) established that divorce, assuming the maintenance of the marriage not having been dissolved, according to Article 85 clearly states the Civil Code, does not generate in terms of divorced spouses because of application of Articles 143, 150 and 152 of the Civil Code, relating to food among relatives, but the fixing of a pension to establish in court that granted divorce, as is clear from the provisions of Article 97 of the Civil Code, which just by its very nature, characteristics and way to fix it and in fact can not legally be confused with the provision of food, which does not prevent the reference to food that is made in Article 90 of the Code Civil, as that term limits should be understood with whom, “produced the extinction of marriage, are still entitled to them, as happens particularly in relation to children, since this radical rupture of a marriage in any way lose ago affiliation relationship. In conclusion, if Miriam is in need, and Jesus has sufficient financial capacity, the same shall be obliged to pay to his wife food arts. 142 et seq. CC
d) What are the causes of extinction of domestic partners in the law of de facto union of Valencia?
The reasons why unions are extinguished fact, according to Law 1 / 2001 of April 6, of the Valencian Parliament, which regulates the unions, are as follows (art. 6):
a) By mutual agreement.
b) unilateral decision of one member of the de facto union notified the other by any form allowed by law.
c) death of a member of the union.
d) de facto separation for more than six months.
e) marriage of a member.