Notarial Divorce in Spain

A step in the way to dejudicialization of the voluntary jurisdiction: around 100 competences transferred from judges to notaries. Family Law: marriage, legal separation, divorce Succession Law: certification of intestate inheritance, opening and validation of last wills, appointment of personal representatives in charge of dividing the inheritance, acceptance of the resignation by the executor, approval of the division of the inheritance in certain cases, formation of an inventory prior to the decision to accept or reject the inheritance Law on obligations: offer of payment and consignment, claim of unpaid debts

A step in the way to judicialization of the voluntary jurisdiction: around 100 competences transferred from judges to notaries. Law on property rights: demarcation of property, ownership declarations in order to register immovable property in the Land Registry for the first time or after an interruption Nationality Law: accreditation of compliance with the legal requirements for nationalisation by descendants of Sephardic Jews expelled in the 15th century Commercial Law: adoption of the measures provided for in the law in cases of robbery, theft, loss or destruction of securities, deposit of personal property, securities or bills of trade and sale of deposited property, appointment of experts in insurance contracts

The comparative perspective America: Cuba 1994, Columbia 2005, Ecuador 2006, Brazil 2007, Peru 2008, Bolivia 2014, Nicaragua 2014 Europe: Rumania 2009, Estonia 2010, Latvia 2011, Spain 2015, Slovenia 2019

Main features of the Spanish system Exclusion of the case in which there are minor or disabled children from the scope of divorce by mutual agreement Alternative between the notary and the court clerk for divorce by mutual agreement Prescriptive intervention of lawyers Requirement of a judgement on the non-harmfulness of the agreement by the notary or the court clerk Personal granting required Constitutive effectiveness of the authentic instrument

Notarial divorce in practice (2016 figures) Total number of cases: 101.294 67,944 resolved by judicial decision (67,1%), 26,998 by mutual agreement before the court clerk (26,6%) and 6,352 by mutual agreement before a notary (6,3%) Average duration of the proceedings in court 4.7 months versus 1 week in notarial divorce

International jurisdiction of the notary: Brussels II bis European Regulation Article 2 refers to national law. The Spanish notary is competent, provided the existence of a mutual agreement and the non existence of minor or disabled children, in the following cases: - The two spouses have their habitual residence in Spain - Spain is the place of the last common habitual residence - One of the spouses is a resident in Spain - Both spouses have Spanish nationality

Applicable law: Rome III European Regulation, in force in 16 Member States, Hungary and Spain among them Universal scope Limited choice of applicable law: law of the common habitual residence, last common habitual residence if one of the spouses maintains it, nationality of either of the spouses, lex fori In the absence of choice, in this order: - law of the common habitual residence - law of the last common habitual residence provided that no more than one year has elapsed and one of the spouses maintains it -law of the common nationality -lex fori

Recognition of divorce instruments authorised by foreign notaries EU Member States: automatic recognition (articles 21 and 22 of Brussels II bis European Regulation ) States that are not part of the EU: in Spain they must submit to the procedures provided for recognition in the Law on International Legal Cooperation in civil matters.