SPANISH CIVIL CODE
SPANISH CIVIL CODE
On legal rules, their application and effectiveness
Sources of law
1. The sources of the Spanish legal system are statutes, customs and general legal principles.
2. Any provisions which contradict another of higher rank shall be invalid.
3. Customs shall only apply in the absence of applicable statutes, provided that they are not contrary to morals or public policy, and that it is proven.
4. Legal uses which are not merely for the interpretation of a declaration of will shall be considered customs.
5. General legal principles shall apply in the absence of applicable statute or custom, without prejudice to the fact that they contribute to shape the legal system.
6. Legal rules contained in international treaties shall have no direct application in Spain until they have become part of the domestic legal system by full publication thereof in the Spanish Official State Gazette.
7. Case law shall complement the legal system by means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application of statutes, customs and general legal principles.
8. The Courts shall have the inexcusable duty to resolve in any event on the issues brought before them, abiding by system of sources set forth herein.
1. Statutes shall enter into force twenty days after their full publication in the Official State Gazette, unless otherwise provided therein.
2. Statutes may only be repealed by subsequent statutes. Such repeal shall have the scope expressly provided therein, and shall always extend to any provisions of the new statute on the same matter which are incompatible with the prior statute. Mere abrogation of a statute shall not entail recovery of the force and effect of any provisions repealed thereby.
3. Statutes shall not have retroactive effect, unless otherwise provided therein.
Application of legal rules
1. Rules shall be construed according to the proper meaning of their wording and in connection with the context, with their historical and legislative background and with the social reality of the time in which they are to be applied, mainly attending to their spirit and purpose.
2. Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based exclusively on equity when the law expressly allows this.
1. Where the relevant rules fail to contemplate a specific case, but do regulate another similar one in which the same ratio is perceived, the latter rule shall be applied by analogy.
2. Criminal statutes, exceptional statutes and statutes of temporary nature shall not be applied in cases or times other than as expressly provided therein.
3. The provisions of this Code shall be of subsidiary application in matters governed by other statutes.
1. Unless otherwise provided, for periods stated in number of days, counting from a particular date, the latter shall be excluded from the calculation, which shall begin on the following day; and periods set in number of months or years shall be calculated from date to date. Where on the month of the expiration date there should be no date equivalent to the initial date of the period, the period shall be deemed to expire on the last day of the month.
2. Calculation of periods according to civil law shall not exclude non-business days.
General effectiveness of legal rules
1. Ignorance of the law does not excuse from compliance thereof.
Error in law shall only have the effects provided in the law.
2. The voluntary exclusion of applicable law and the waiver of any rights acknowledged therein shall only be valid when they do not contradict the public interest or public policy or cause a detriment to third parties.
3. Acts contrary to mandatory and prohibitive rules shall be null and void by operation of law, save where such rules should provide for a different effect in the event of violation.
4. Acts performed pursuant to the text of a legal rule, which pursue a result forbidden by the legal system or contrary thereto shall be considered to be in fraud of the law and shall not prevent the due application of the rule which they purported to avoid.
1. Rights must be exercised in accordance with the requirements of good faith.
2. The law does not support abuse of rights or antisocial exercise thereof. Any act or omission which, as a result of the author’s intention, its purpose or the circumstances in which it is performed manifestly exceeds the normal limits to exercise a right, with damage to a third party, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures preventing persistence in such abuse.
Rules of private international law
1. Criminal, police and public security statutes shall be binding on all persons within Spanish territory.
1. The personal law applicable to an individual shall be determined by his nationality. Such law shall govern capacity and civil status, family rights and duties and mortis causa succession.
A change in personal law shall not affect the coming of age acquired in accordance with the former personal law.
2. The effects of marriage shall be governed by the personal law common to the spouses at the time of the marriage; in the absence thereof, by the personal law or the law of the place of residence of any of them, chosen by both in an authentic instrument executed prior to the marriage ceremony; in the absence of such election, by the law of the place of habitual residence common to both immediately after the ceremony and, in the absence of such residence, by that of the place of the marriage ceremony.
Legal separation and divorce shall be governed by the law provided in article 107.
3. Covenants or marriage articles stipulating, amending or replacing the property regime of the marriage shall be valid when they are in accordance with either the law governing the effects of the marriage, or the law of the nationality or habitual residence of either party at the time of execution thereof.
4. The nature and content of filiation, including filiation by adoption, and the relations between parents and their children, shall be governed by the personal law of the child and, if this cannot be determined, the law of his habitual residence.
5. International adoption shall be governed by the provisions of the International Adoption Law. Likewise, adoptions decreed by foreign authorities shall be effective in Spain in accordance with the provisions of the aforementioned International Adoption Law.
6. Guardianship and other institutions to protect incapable persons shall be regulated by the latter’s national law. Notwithstanding the foregoing, provisional or urgent protection measures shall be governed by the law of his habitual residence.
The formalities to constitute guardianship and other protection institutions in which Spanish judicial or administrative authorities should participate shall in any event be performed in accordance with Spanish law.
Spanish law shall apply to the taking of protective and educational measures relating to abandoned minors or incapable persons within Spanish territory.
- The right to support between relatives shall be governed by the common national law of the giver and the recipient of such support. Notwithstanding the foregoing, the law of the habitual residence of the person claiming such support shall apply where the latter cannot obtain it in accordance with the common national law. In the absence of both such laws, or where neither allows to obtain support, the domestic law of the authority hearing the claim shall apply.
In the event of a change in the common nationality or habitual residence of the recipient of support, the new law shall apply from the time of such change.
- Succession mortis causa shall be governed by the national law of the decedent at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator or bequeather at the time of execution thereof shall remain valid even if another law is to govern the succession. Rights attributed by operation of law to the surviving spouse shall be governed by the same law which governs the effects of marriage, respecting at all times the forced share allocated to the descendants.
- For the purposes of the present chapter, the provisions of the international treaties shall apply to situations of dual nationality provided under Spanish law, and, in the absence of such provisions, the nationality of the last place of habitual residence and, in the absence thereof, the last nationality acquired shall be preferred.
In any event, Spanish nationality shall prevail for persons who also hold another nationality that is not provided for in Spanish statutes or international treaties. If such person should hold two or more nationalities, and none should be Spanish, the provisions of the following section shall apply.
- The law of the place of habitual residence shall be deemed to be the personal law of persons without nationality or with indeterminate nationality.
- The personal law corresponding to legal entities shall be determined by their nationality, and shall apply in all matters relating to their capacity, incorporation, representation, operation, transformation, dissolution and termination.
In mergers between companies of different nationalities their respective personal laws shall be taken into account.
- Possession, ownership and other rights over immovable property and publicity thereof shall be governed by the law of the place where such property located.
The same law shall apply to movable property.
For the purposes of creating or assigning rights over goods in transit, the latter shall be deemed to be located at their place of dispatch, unless the sender and the recipient should have expressly or implicitly agreed to deem them to be located at their place of destination.
- Vessels, aircraft and railway transport vehicles, and all rights created thereon, shall be subject to the law of their flag, matriculation or registration. Automobiles and other road transport vehicles shall be subject to the law of the place where they are located.
- The issuance of securities shall be subject to the law of the place where it takes place.
- Intellectual and industrial property rights shall be protected within Spanish territory in accordance with Spanish law, without prejudice to the provisions of international treaties and conventions to which Spain is a party.
- The law to which the parties have expressly submitted shall apply to contractual obligations, provided that it has some connection with the transaction in question; in the absence thereof, the national law common to the parties shall apply; in the absence thereof, that of their common habitual residence and, lastly, the law of the place where the contract has been entered into.
Notwithstanding the provisions of the preceding paragraph, in the absence of express submission, contracts relating to immovable property shall be governed by the law of the place of their location, and sale and purchases of material movable property in commercial establishments by the law of the location of such establishments.
6. In the absence of express submission by the parties and without prejudice to the provisions of section 1 article 8, obligations resulting from a labour contract shall be governed by the law of the place where the services are provided.
7. Gifts shall in any event be governed by the national law of the donor.
8. Contracts for valuable consideration entered into in Spain by a foreigner without sufficient capacity according to his national law shall be valid for the purposes of Spanish law if the cause of his lack of capacity should not be recognised under Spanish law. This rule shall not apply to contracts relating to immovable property located abroad.
9. Non-contractual obligations shall be governed by the law of the place where the event from which they result took place.
The management of another’s business shall be governed by the law of the place of the manager’s main activity.
Unjust enrichment shall be governed by the law pursuant to which the transfer of assets in favour of the enriched person took place.
10. The law applicable to an obligation shall also govern the requirements for its performance and the consequences of its breach, and the extinction thereof. Notwithstanding the foregoing, the law of the place of performance shall apply to modes of enforcement which require judicial or administrative intervention.
11. Legal representation shall be governed by the law regulating the legal relationship from which result the representative’s powers, voluntary representation, in the absence of express submission, by the law of the country where the powers conferred are to be exercised.
1. Forms and solemnities of contracts, wills and other legal acts shall be governed by the law of the country in which they are executed. Notwithstanding the foregoing, those entered into according to the forms and solemnities required by the law applicable to their content, and those entered into in accordance with the personal law of the grantor or the law common to the parties shall also be valid. Likewise, acts and contracts relating to immovable property executed in accordance with the forms and solemnities of the place where the property is located shall also be valid.
If such acts should be executed on board vessels or aircraft during navigation or flight, they shall be deemed entered into in the country of their flag, matriculation or registration. Military vessels and aircraft shall be deemed a part of the territory of the State to which they belong.
2. If the law regulating the content of acts and contracts should require a particular form or solemnity for the validity thereof, this shall always apply, even if they are executed abroad.
3. Spanish law shall apply to contracts, wills and other legal acts authorised by Spanish diplomatic or consular officers abroad.
1. Classification to determine the applicable conflict of laws rule shall always be made in accordance with Spanish law.
2. Referral to foreign law shall be deemed made to its material law, without taking into account any renvoi made by its conflict of laws rules to another law other than Spanish law
3. In no event shall foreign law apply where it is contrary to public policy.
4. The use of a conflict of laws rule to elude a mandatory Spanish law shall be deemed to constitute fraud of the law.
5. Where a conflict of laws rule should refer to the legislation of a State in which different legislative systems should coexist, the determination of which one is applicable shall be made in accordance with the legislation of such State.
6. The Courts and authorities shall apply Spanish conflict of laws rules ex officio.
Scope of application of coexisting civil law regulations within national territory
1. The provisions of this preliminary title, to the extent that they determine the effects of laws and the general rules governing their application, and those of title IV book I, with the exception of the rules in the latter relating to marriage property regime, shall be of general and direct application in all of Spain.
2. For the rest, fully respecting any specific or regional law of any provinces or territories in which such law should apply, the provisions of the Civil Code shall apply on a subsidiary basis, in the absence of a subsidiary law in each of them, according to their specific rules.
1. Submission to common civil law or to specific or regional law is determined by civil residence.
2. Persons born from parents with civil residence within common law territory or in specific or regional law territories shall have the same civil residence as their parents.
The non-emancipated adoptee shall acquire the adoptive parents’ civil residence pursuant to the adoption.
3. If the parents should have different civil residence upon the birth or adoption of their child, the child shall have the civil residence corresponding to the parent in respect of whom the child’s filiation should have been determined first; in the absence thereof, that of his place of birth and, lastly, the civil residence of common law.
Notwithstanding the foregoing, the parents, or the parent who exercises or has been attributed parental authority, may attribute to the child the civil residence of either within six months following the birth or adoption.
Deprivation or suspension in the exercise of parental authority, or a change of civil residence of the parents shall not affect the civil residence of their children.
In any event, the child, from his fourteenth birthday and until one year after his emancipation, may either opt for the civil residence of his place of birth or the last civil residence of either parent. If he should not have been emancipated, he must be assisted in his choice by his legal representative.
4. Marriage does not alter civil residence. Notwithstanding the foregoing, either of the spouses who is not legally or de facto separated may at any time opt for the civil residence of the other.
5. Civil residence is acquired:
1. By two years’ continued residence, provided that the interested party declares that such is his intention.
2. By ten years’ continued residence, without declaration to the contrary during such period.
Both declarations shall be noted in the Civil Registry and shall not require to be repeated.
6. In case of doubt, the civil residence corresponding to the place of birth shall prevail.
1. The foreigner who acquires Spanish nationality must, upon registration of the acquisition of such nationality, opt for any of the following civil residences:
a. The one corresponding to the place of residence.
b. The one corresponding to the place of birth.
c. The last civil residence of any of his parents or adoptive parents.
d. The spouse’s.
Depending on the capacity of the interested party to acquire said nationality, such election shall be made by the relevant person himself or assisted by his legal representative, or by the representative. If nationality should be acquired as a result of a declaration or request by the legal representative, the necessary authorisation must determine which civil residence is to be chosen.
2. The foreigner who acquires Spanish nationality by naturalisation shall have the civil residence determined in the Royal Decree granting such naturalisation, taking into account his choice, in accordance with the provisions of the preceding section or other circumstances present in the applicant.
3. Recovery of Spanish nationality shall entail recovery of the civil residence held by the interested party at the time of its loss.
4. Personal dependence in respect of a region or locality with a proprietary or different civil specialty, within specific or regional legislation applicable to the relevant territory shall be governed by the provisions of the present and of the preceding article.
1. Conflicts of laws which may arise as a result of the coexistence of different civil legislations within national territories shall be resolved according to the rules provided in chapter IV, with the following particularities:
1. Personal law shall be as determined by civil residence.
2. The provisions of sections 1, 2 and 3 article 12 on classification, referral and public policy shall not apply.
2. The widowhood rights provided in the Compilation of Aragon shall correspond to spouses subject to the marriage property regime provided in such Compilation, even if they should later change their civil residence, excluding, in this case, the forced share set forth in the applicable succession law.
Expectant widowhood rights shall not be effective against an acquirer for valuable consideration in good faith of any properties not located within the territory where such right is recognised, if the contract should have been entered into outside such territory without noting the transferor’s marriage property regime.
The widow’s usufruct shall also correspond to the surviving spouse where the predeceased spouse should have civil residence in Aragon at the time of his death.
3. The effects of marriage between Spaniards shall be governed by the applicable Spanish law according to the criteria provided in article 9 and, in the absence thereof, by the Civil Code.
In this last case the separation of estates regime provided in the Civil Code shall apply if such kind of regime must apply according to the personal law of both of the spouses.
On Spaniards and foreigners
1. The following persons are Spaniards by birth:
a. Those born of a Spanish mother or father.
b. Those born in Spain of foreign parents if at least one of them should also have been born in Spain. The children
of a diplomatic or consular officer credentialed in Spain shall be excepted from this rule.
c. Those born in Spain of foreign parents if both of them should be without nationality or if the legislation of neither
should grant a nationality to the child.
d. Those born in Spain of uncertain filiation. For these purposes, minors whose first known place of existence is
in Spanish territory shall be presumed born within Spanish territory.
2. Filiation or birth in Spain determined after the person is eighteen shall not by themselves constitute grounds to acquire Spanish nationality. The interested party shall then be entitled to opt for Spanish nationality by birth within two years counting from such determination.
The possession and continued use of Spanish nationality for ten years, in good faith and based on a title registered in the Civil Registry shall constitute grounds for the consolidation of Spanish nationality, even if the title which originated should be annulled.
1. A foreigner younger than eighteen adopted by a Spaniard shall acquire Spanish nationality by birth as of the adoption.
2. If the adoptee should be older than eighteen, he may opt for Spanish nationality by birth within two years following the adoption.
1. Persons who are or have been subject to the parental authority of a Spaniard, and those comprised within the last section of articles 17 and 19 shall be entitled to opt for the Spanish nationality.
2. The declaration of option shall be formulated:
a. By the legal representative of the person who makes the option where the latter should be younger than fourteen or incapacitated. In this case the option shall require the authorisation of the officer in charge of the Civil Registry of the domicile of the person who makes the declaration, after issuance of an opinion by the Public Prosecutor. Such authorisation shall be granted in the interests of the minor or incapacitated person.
b. By the interested party, assisted by his legal representative, if he is older than fourteen or when, in spite of his incapacity, he should be allowed to do so by the incapacitation judgement.
c. By the interested party, by himself, if he is emancipated or older than eighteen. The right to exercise the option will expire when he turns twenty, but if he should not be emancipated according to his personal law upon turning eighteen, the period to exercise the option shall be extended until two years after his emancipation.
d. By the interested party, by himself, within two years following recovery of full legal capacity. The case where the right to exercise the option should have expired in accordance with section c) shall be excepted therefrom.
1. Spanish nationality shall be acquired by naturalisation, granted discretionally pursuant to Royal Decree, when special circumstances concur in the interested party.
2. Spanish nationality shall also be acquired by residence in Spain, in the conditions provided in the following article, and shall be granted by the Minister of Justice, who may refuse it on reasoned grounds of public policy or national interest.
3. In both cases, the application may be formulated by:
a. The interested party who is emancipated or older than eighteen.
b. The person older than fourteen assisted by his legal representative.
c. The legal representative of a person younger than fourteen.
d. The legal representative of the incapacitated person, or the incapacitated person by himself or duly assisted, as results from the incapacitation judgement. In this case and in the former, the legal representative may only formulate the application if he previously obtains an authorisation in accordance with the provisions of letter a) section 2 of the preceding article.
4. The granting of nationality pursuant to naturalisation or residence shall expire after one hundred and eighty days if the interested party does not within such period appear before a competent officer to comply with the requirements provided in article 23.
1. Granting of nationality pursuant to residence shall require ten years’ residence. Five years shall be sufficient for persons who have obtained asylum or refugees, and two years for citizens by birth of Latin-American countries, Andorra, the Philippines, Equatorial Guinea or Portugal, or for Sephardic Jews.
2. One year’s residence shall be sufficient for:
a. A person born within Spanish territory.
b. A person who has not exercised his option right in due time.
c. A person who has been legally subject to guardianship, custody or care by a Spanish citizen or institution for
two consecutive years, even if such situation should persist at the time of the application.
d. The person who, at the time of the application, has been married to a Spaniard for one year and is not legally or de facto separated.
e. The widow or widower of a Spaniard if, upon the death of the spouse they should not be legally or de facto separated.
f. The person born outside of Spain from a father or mother who were originally Spanish.
3. In all cases residence must be legal, ongoing and immediately prior to the application.
For the purposes of the provisions of letter d) of the preceding section, the spouse cohabiting with a Spanish diplomatic or consular officer credentialed abroad shall be deemed to have legal residence in Spain.
4. The interested party must evidence good civic conduct and a sufficient degree of integration in Spanish society in the proceedings regulated by the Civil Registry legislation.
5. The granting or refusal of nationality pursuant to residence shall be open to contentious administrative appeal.
The following are common requirements for the validity of the acquisition of Spanish nationality by option, naturalisation or residence:
a. For the person older than fourteen and capable of issuing a statement by himself to swear or promise fidelity to
the King and obedience to the Constitution and the law.
b. For the same person to declare that he renounces his prior nationality. Nationals of the countries mentioned in
section 2 article 24 shall be excepted from this requirement.
c. For the acquisition to be registered with the Spanish Civil Registry.
1. Emancipated persons habitually resident abroad who voluntarily acquire another nationality or who exclusively use their foreign nationality attributed prior to their emancipation shall lose their Spanish nationality.
2. Such loss shall take place after the lapse of tree years, counting, respectively, from the acquisition of the foreign nationality or from the emancipation.
Acquisition of the nationality of Latin American countries, Andorra, the Philippines, Equatorial Guinea or Portugal shall not be sufficient to cause the loss of Spanish nationality by birth.
3. In any event, emancipated Spaniards who expressly renounce their Spanish nationality shall lose it if they have another nationality and have their residence abroad.
4. Loss of Spanish nationality shall not take place pursuant to the provisions of this rule if Spain should be at war.
1. Spaniards who are not Spanish by birth shall lose their nationality:
a. When for a period of three years they should exclusively use the nationality which they should have declared
to have renounced upon acquiring Spanish nationality.
b. When they should voluntarily enter the armed forces or exercise public office in a foreign State against the
Government’s express prohibition.
2. A final judgement holding that the relevant party has incurred in misrepresentation, concealment or fraud in the acquisition of Spanish nationality shall cause such acquisition’s being null and void, although no prejudicial effects shall result for third parties in good faith. The action for annulment must be exercised by the Public Prosecutor ex officio or pursuant to a complaint, within a period of fifteen years.
1. A person who has lost his Spanish nationality may recover it by meeting the following requirements:
a. Being a legal resident in Spain. This requirement shall not apply to emigrants or to the children of emigrants. In the remaining cases, it may be waived by the Minister of Justice in the event of exceptional circumstances.
b. Declaring before the officer in charge of the Civil Registry his intention to recover Spanish nationality, and
c. Registering the recovery in the Civil Registry.
2. Persons incurring in any of the grounds provided in the preceding article may not recover or acquire, as the case may be, Spanish nationality, without the Government’s prior authorisation, to be granted discretionally:
Foreigners shall enjoy in Spain the same civil rights as Spaniards, save as provided in specific statutes and Treaties.
Corporations, foundations and associations recognised by the law and domiciled in Spain shall have Spanish nationality, provided that they are legal entities in accordance with the provisions of the present Code.
Associations domiciled abroad shall have in Spain the consideration and rights determined in the treaties or specific statutes.
On the birth and extinguishing of civil personality
On natural persons
Birth determines personality; but the child conceived shall be deemed already born for all purposes favourable to him, provided that he should be born meeting the conditions expressed in the following article.
Legal personality is acquired at the time of live birth, once the complete detachment from the mother’s womb has taken place.
1 Amended by the Third Final Provision 3 of Act 20/2011, of 21st July.
In the event of double births, priority in birth shall entitle the first child born to the rights recognised in the law to the firstborn.
Civil personality shall be extinguished as a result of death.
Between two persons called to succeed each other, in the event of doubt as to which of them died first, the person holding that one or the other died first must prove it; in the absence of evidence, they shall be presumed to have died at the same time, and no transfer of rights from one to the other shall take place.
The provisions of title VIII of the present book shall apply to the presumption of the death of the absentee and its effects.
On legal entities
The following shall be legal entities:
1. Corporations, associations and foundations of public interest recognised by the law.
Their personality shall begin from the very moment in which they should have been validly incorporated in
accordance with the law.
2. Associations of private interest, whether civil, commercial or industrial, to which the law grants legal personality
independent of that of each member.
Associations mentioned in number 2 of the preceding article shall be governed by the provisions relating to the partnership contract, depending on the nature thereof.
The civil capacity of corporations shall be governed by the laws which have created or recognised them; that of associations, by their articles, and that of foundations by their regulations, duly approved by an administrative resolution, where this requirement should be necessary.
Legal entities may acquire and possess property of all kinds, and contract obligations and exercise civil and criminal actions, in accordance with the laws and internal regulations.
The Church shall be governed in this matter by the provisions of the concordat between both powers, and educational and charitable establishments by the provisions of specific statutes.
If, as a result of expiration of their legal term, or as a result of the fulfilment of the purpose for which they were created, or of the impossibility of applying to the former the activity and the means available to them, corporations, associations and foundations should cease to operate, their property shall be allocated as provided in the laws, articles of association or foundational articles. In the absence of any prior provision, such property shall be allocated to the performance of analogous purposes in the interests of the region, province or Municipality principally entitled to receive the benefits of the extinguished institutions.TITLE III
The domicile of natural persons for the purposes of the exercise of civil rights and the performance of civil obligations shall be their place of habitual residence and, as the case may be, their domicile as determined by the Civil Procedural Law.
The domicile of diplomats resident abroad as a result of their post, who enjoy the right of extraterritoriality shall be their last domicile in Spanish territory.
Where neither the law which created or recognised them or the articles of association or foundational articles should establish the domicile of legal entities, it shall be deemed to be in the place where their legal representation is located, or where they exercise their main institutional functions.
On the promise of marriage
The promise of marriage does not give rise to the obligation to marry or to comply with the provisions thereof in the event of failure to perform the marriage.
Any claim purporting compliance thereof shall not be granted leave to proceed.
Breach of a certain promise of marriage made by a person of legal age or by an emancipated minor, without cause, shall only give rise to the obligation to compensate the other party for expenses made and obligations contracted in consideration of the promised marriage.
This action shall lapse by peremption after one year counting from the date of the refusal to enter into the marriage.
On the requirements of marriage
Men and women are entitled to marry in accordance with the provisions of this Code.
Marriage shall have the same requirements and effects when both prospective spouses are of the same or different genders.
There shall be no marriage without matrimonial consent.
Any condition, term or mode limiting consent shall be deemed not to have been written.
The following persons may not marry:
1. Non-emancipated minors.
2. Persons who are already joined in marriage.
The following persons may also not marry each other:
1. Direct line relatives by consanguinity or adoption.
2. Collateral relatives by consanguinity up to the third degree.
3. Persons sentenced as authors of or accomplices in the murder of the spouse of either of them.
The Minister of Justice may waive the impediment of murder of the former spouse at the request of one of the parties.
The First Instance Judge may waive, with just cause and at the request of one of the parties, impediments relating to third degree collateral consanguinity and the age impediment for persons older than fourteen. The minor and his parents or carers must be heard in proceedings to waive the age impediment.
A subsequent waiver shall validate the marriage from the date of its performance, where neither party has applied to the court to have it declared null and void.
On the form of performing the marriage
SECTION ONE. GENERAL PROVISIONS
Any Spaniard may marry inside or outside of Spain:
1. Before the Judge, Mayor or public officer provided in this Code.
2. According to the religious form provided in the law.
He may also marry outside of Spain according to the form provided in the law of the place of the marriage ceremony.
If both prospective spouses should be foreigners, the marriage may be performed in Spain in according to the form provided for Spaniards, or in compliance with the form set forth in the personal law applicable to either of them.
SECTION TWO. ON MARRIAGE PERFORMED BEFORE A JUDGE, MAYOR OR PUBLIC OFFICER IN THEIR STEAD
The following persons shall be competent to authorise the marriage:
1. The Judge in charge of the Civil Registry and the Mayor of the municipality where the marriage is performed, or
the councillor in favour of whom the latter should have delegated.
2. In municipalities where such a Judge should not be in residence, the delegate designated pursuant to applicable
3. The diplomatic or consular officer in charge of the Civil Registry abroad.
The following persons may authorise the marriage of persons in danger of death:
1. The Judge in charge of the Civil Registry, the delegate or the Mayor, even if the prospective spouses do not
reside in the relevant court district.
2. In the absence of a Judge, for members of the military in military campaigns, the immediate superior Officer or
3. For marriages performed on board a vessel or aircraft, the Captain or Commander thereof.
Such marriage shall not require the prior creation of a record of the proceedings, but shall require the presence of two witnesses of legal age at the ceremony, save in the event of proven impossibility.
The validity of the marriage shall not be affected by the incompetence or lack of legitimate appointment of the Judge, Mayor or officer who authorises it, provided that at least one of the spouses should have acted in good faith and the former should exercise their duties publicly.
In the event of sufficiently proven serious grounds, the Minister of Justice may authorise a secret marriage. In such case, the record of proceedings shall be processed confidentially, without the publication of edicts or banns.
The record of the marriage may authorise that the prospective spouse who does not reside in the district or district of the authorising Judge, Mayor or officer may enter into the marriage by means of an attorney who has been granted a special power of attorney in an authentic instrument, but the personal attendance of the other spouse shall always be required.
The power of attorney shall determine the person with whom the marriage is to be performed, expressing the personal circumstances necessary to establish his identity.
The power of attorney shall be terminated as a result of revocation by the grantor, resignation of the attorney or the death of either of them. In the event of revocation by the grantor, his statement in an authentic instrument prior to the performance of the marriage shall be sufficient for these purposes. Notice of such revocation shall be immediately given to the authorising Judge, Mayor or officer.
Persons wishing to marry must previously evidence, in a record of proceedings processed in accordance with the Civil Registry legislation, that they meet the capacity requirements set forth in this Code.
If either of the prospective spouses should be affected by mental deficiencies or anomalies, a medical opinion on his ability to give consent shall be required.
The marriage must be performed before the Judge, Mayor or officer corresponding to the domicile of either prospective spouse, and two witnesses of legal age.
Consent may also be given, by delegation of the officer in charge of the record of the proceedings, either at the request of the prospective spouses or ex officio, before the Judge, Mayor or officer of another location.
The Judge, Mayor or officer, after reading articles 66, 67 and 68 hereof, shall ask each of the prospective spouses whether they consent to marry and effectively marry in such act, and, both of them answering in the affirmative, shall declare them joined in matrimony and shall extend the relevant entry or certificate.
SECTION THREE. ON MARRIAGE PERFORMED IN RELIGIOUS FORM
Matrimonial consent may be given in the form provided by a registered religious confession, in the terms agreed with the State or, in the absence thereof, in the terms provided by State legislation.
A marriage performed in accordance with the provisions of Canon Law or in any of the religious forms provided in the preceding article shall have civil effect. The provisions of the following chapter shall apply as relates to the full recognition of such effects.
On registration of the marriage in the Civil Registry
Marriage shall have civil effects from the time of its performance.
The full recognition thereof shall require registration of the marriage in the Civil Registry.
A marriage which has not been registered shall not be prejudicial to the rights acquired in good faith by third parties.
The Judge, Mayor or officer before whom the marriage is performed shall, immediately after its performance, make the corresponding entry or certificate, with his signature and that of the spouses and witnesses.
Likewise, after having made the entry or issued the certificate, the Judge, Mayor or officer shall deliver to each spouse a document evidencing the performance of the marriage.
Registration of the marriage performed in Spain in religious form shall take place by the mere filing of the certification issued by the respective Church or confession, which must express the circumstances required by the Civil Registry legislation.
Registration shall be refused where the documents submitted or the entries in the Registry should show that the marriage does not meet the requirements for its validity provided in this title.
Registration in the special book carried by the Central Civil Registry shall suffice to recognise a secret marriage, but such marriage shall not be prejudicial to rights acquired by third parties in good faith until publication thereof in the ordinary Civil Registry.
Save for the provisions of article 63, in all other cases where the marriage should have been performed without processing the relevant record of the proceedings, the Judge or officer in charge of the Registry must ascertain whether the legal requirements for its performance are met prior to registration thereof.
On the rights and duties of the spouses
The spouses are equal in rights and duties.
The spouses must respect and assist each other and act in the family interest.
The spouses are obliged to live together, to be faithful to one another and to come to one another’s’ aid. They must, furthermore, share domestic responsibilities and the care and attendance of parents and descendants and other dependents in their charge.
It shall be presumed, unless there is evidence to the contrary, that the spouses live together.
The spouses shall set the marital domicile by common consent and any discrepancy shall be resolved by the Judge, taking into account the family interest.
Neither spouse may attribute to himself the representation of the other unless it is conferred.
On the nullity of the marriage
The marriage shall be null and void, whatever the form of its performance:
1. Marriage performed without matrimonial consent.
2. Marriage performed between the persons mentioned in articles 46 and 47, save in the event of waiver in
accordance with article 48.
3. Marriage performed without the intervention of the Judge, Mayor or officer before whom it is to be performed,
or without the presence of witnesses.
4. Marriage performed as a result of error as to the identity of the other spouse, or such personal qualities which,
as a result of their importance, should have been decisive in the giving of consent.
5. Marriage performed under duress or serious fear.
The action for annulment of the marriage shall correspond to the spouses, to the Public Prosecutor or to any person with a direct and legitimate interest therein, save as provided in the following articles.
If the grounds for nullity should be age, while the spouse remains underage the action may only be exercised by his parents, guardians or carers and, in any case, by the Public Prosecutor.
On coming of age, the action may only be exercised by the spouse who was underage at the time, unless the spouses should have lived together during one year after he came of age.
In cases of error, duress or serious fear, the action for annulment may only be exercised by the spouse who suffered the defect of consent.
The action shall lapse by peremption and the marriage shall be validated if the spouses should have lived together for a year after the error should have disappeared, or the duress or the grounds for fear should have ceased.
The judge shall not decree the annulment of a marriage as a result of a defect of form, where at least one of the spouses entered into it in good faith, save for the provisions of article 73 number 3.
The declaration of the marriage being null and void shall not invalidate any effects already occurred in respect of the children and the spouse or spouses who acted in good faith.
Good faith is presumed.
Resolutions issued by Ecclesiastical Courts relating to the annulment of a canonical marriage, or the Pope’s decisions relating to ratified and non-consummated marriages shall be effective under Civil law, at the request of either party, if they are declared to adjust to the Law of the State in a resolution issued by the competent civil Judge in accordance with the conditions mentioned in article 954 of the Civil Procedural Law.
Whatever the form of performance of the marriage, judicial separation shall be decreed:
1. At the request of both spouses or of one with the consent of the other, after the lapse of three months from the performance of the marriage. The claimant must necessarily attach the proposal of settlement agreement, in accordance with article 90 of this Code.
2. At the request of one of the spouses, after the lapse of three months from the performance of the marriage. The lapse of this period shall not be required to file the claim when there is evidence of the existence of risk to the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the spouse filing the claim or the children in common or any member of the marriage.
The claim shall attach a reasoned proposal of the measures which are to regulate the effects of the separation.
The separation judgement gives rise to suspension of the life in common of the married spouses, and ends the possibility of binding the property of the other spouse in the exercise of domestic authority.
Reconciliation shall end separation proceedings, and shall render without subsequent force and effect the matters resolved therein, but both spouses must separately make the Judge who hears or has heard the case aware of such reconciliation.
Notwithstanding the foregoing, any measures adopted in connection with the children shall be maintained or amended by court resolution, in the event of a just cause which justifies them.
On the dissolution of the marriage
The marriage shall be dissolved, whatever the form and time of its performance, by the death or the declaration of death of one of the spouses, and by divorce.
Divorce shall be decreed by the court, whatever the form of performance of the marriage, at the request of one of the spouses, of both or of one with the consent of the other, when the requirements and circumstances of article 81 are met.
The divorce action shall be extinguished as a result of the death of either spouse and by reconciliation, which must be express if it takes place after filing the claim.
Reconciliation subsequent to the divorce shall have no legal effect, although the divorcees may marry again.
Dissolution of the marriage by divorce may only take place by means of judgement declaring the divorce and shall be effective from the judgement’s becoming final. It shall not be prejudicial to third parties in good faith until after registration thereof with the Civil Registry.
On effects common to annulment, separation and divorce
The settlement agreement mentioned in articles 81 and 86 of this Code must contain, at least the following items:
a) Care of the children subject to the parental authority of both spouses, the exercise thereof and, as the case may be, the schedule of communications and stays of the children with the parent who does not usually live with them.
b) If deemed necessary, the schedule of visits and communications between grandchildren and grandparents,
always taking into account the interests of the former.
c) Attribution of the use of the family home and appurtenances.
d) Contribution to the expenses of the marriage and support, and the basis on which it is to be updated, and
security thereof, the case may be.
e) Liquidation, where applicable, of the marriage property regime.
f) Allowance to be paid, as the case may be, in accordance with article 97, by one of the spouses.
Agreements between the spouses adopted to regulate the consequences of the annulment, separation or divorce shall be approved by the judge, unless they are detrimental to the children or seriously prejudicial to one of the spouses. If the parties propose a visit and communications schedule between grandchildren and grandparents, the judge may approve it after hearing the grandparents, at which hearing the grandparents must give their consent thereto. Rejection of the agreements must be made by a reasoned resolution, and, in this case, the spouses must submit a new proposal for the judge’s consideration, for his approval, where applicable. The agreements may be enforced by summary proceedings as of their judicial approval.
The measures adopted by the Judge in the absence of an agreement, or those agreed between the spouses, may be amended by the Judge or by a new settlement agreement, in the event of a substantial alteration of the circumstances.
The Judge may set any real or personal security required for the performance of the agreement.
In annulment, separation or divorce judgements or the enforcement thereof, the Judge, in the absence of an agreement between the spouses or non-approval thereof, shall determine, in accordance with the provisions of the following articles, any measures which are to replace those already adopted previously in connection with the children, the family home, marital expenses e, liquidation of the marriage property regime and any respective precautions or security, establishing applicable measures if none should have been adopted in respect thereof. These measures may be amended in the event of substantial alteration of the circumstances.
1. Separation, annulment and divorce shall not exonerate parents from their obligations to their children.
2. When the Judge is to adopt any measure relating to custody, care and education of underage children, he shall ensure compliance with their right to be heard.
3. The judgement shall order the deprivation of parental authority when grounds for this should be revealed in the proceedings.
4. The parents may agree in the settlement agreement, or the Judge may decide, for the benefit of the children, that parental authority be exercised in whole or in part by one of the spouses.
5. Shared care and custody of the children shall be decreed where the parents should request it in the settlement agreement proposal or where both of them should agree on this during the proceedings. The Judge, in decreeing joint custody and after duly motivating his resolution, shall adopt the necessary precautions for the effective compliance of the agreed custody regime, trying not to separate siblings.
6. In any event, after decreeing the care and custody regime, the Judge must ask the opinion of the Public Prosecutor and hear minors who have sufficient judgement, where this is deemed necessary ex officio or at the request of the Public Prosecutor, the parties or members of the Court Technical Team, or the minor himself, and evaluate the parties’ allegations at the hearing and the evidence practised therein, and the relationship between the parents themselves and with their children to determine the suitability of the custody regime.
7. No joint custody shall be granted when either parent should be subject to criminal proceedings as a result of an attempt against the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the other spouse or the children who live with both of them. Neither shall it apply where the Judge should observe, from the parties’ allegations and the evidenced practiced, that there is well-founded circumstantial evidence of domestic violence.
- Exceptionally, even when the circumstances described in section five of this article do not arise, the judge, at the request of one of the parties, with a favourable report from the public prosecutor’s office, may award shared care and custody, on the basis that only in that way are the best interests of the minor adequately protected.
- The Judge, before adopting any of the decisions mentioned in the preceding paragraphs, ex officio or ex parte, may ask for the opinion of duly qualified specialists relating to the suitability of the form of exercise of parental authority and the minors’ custody regime.
The Judge shall in any event determine each parent’s contribution to pay child support and shall adopt convenient measures to ensure the effectiveness and suitability of the payments to economic circumstances and to the needs of the children from time to time.
If children who are of legal age or emancipated but have no own resources should live in the family home, the Judge, in the same resolution, shall set any support which may be due n accordance with articles 142 et seq. of this Code.
The parent who does not live with his underage or incapacitated children shall be entitled to visit them, communicate with them and have them in his company. The Judge shall determine the time, manner and place to exercise visitation rights, which may be limited or suspended in the event that serious circumstances should advise it or of serious and repeated breach of the duties imposed by the judicial resolution.
Likewise, the Judge may determine, after hearing the parents and grandparents, who must give their consent, rights of communication and visitation between grandparents and grandchildren, in accordance with article 160 of this Code, always keeping in mind the interests of the minor.
The final judgement shall give rise to the dissolution of the marriage property regime, as relates to the marriage property.
If the judgement of annulment should declare the bad faith of one spouse only, the spouse who has acted in good faith may choose to apply the provisions relating to the participation regime to the liquidation of the marriage property regime, and the spouse acting in bad faith shall not be entitled to participate in the gains obtained by his consort.
In the absence of an agreement between the spouses approved by the Judge, use of the family home and the objects of ordinary use therein shall correspond to the children and to the spouse in whose company they remain.
Where some children remain in the company of one spouse and the rest with the other, the Judge shall resolve as deemed fit.
In the absence of children, it may be resolved that the use of such property for the prudential time thus provided, shall correspond to the non-owner spouse, provided that, under the circumstances, this should be advisable, and that such spouse’s interest should in greater need of protection.
2 The highlighted subsection of section 8 is declared unconstitutional and null and void by the Constitutional Court’s ruling of 17 October 2012.
The consent of both parties or, as the case may be, judicial authorisation shall be required to dispose of the home and property mentioned above when their use should correspond to the non-owner spouse.
The spouse for whom the separation or divorce should give rise to an economic imbalance in relation with the other’s position, involving a deterioration of his situation prior to the marriage, shall be entitled to compensation, which may consist of a temporary or indefinite allowance or a lump sum settlement, as determined in the settlement agreement or in the judgement
In the absence of an agreement between the spouses, the Judge shall determine, pursuant to a judgement, the amount thereof, taking into account the following circumstances:
1. Agreements reached by the spouses.
2. Age and state of health.
3. Professional qualifications and likelihood of getting a job.
4. Past and future dedication to the family.
5. Collaboration by working in the other spouse’s commercial, industrial or professional activities.
6. The duration of the marriage and of their marital cohabitation.
7. The possible loss of pension rights.
8. Economic wealth and resources and the needs of each spouse.
The judicial resolution shall set the bases to update the allowance and any guarantees to ensure its effectiveness.
The spouse in good faith whose marriage has been declared null and void shall be entitled to compensation if there has been marital cohabitation, attending to the circumstances provided in article 97.
At any time the parties may agree to replace the allowance set by the Judge in accordance with article 97 by the constitution of a life annuity, usufruct over certain property or payment of a capital sum in the form of property or cash.
After the setting of the allowance and the bases to update it in the separation or divorce judgement, it may only be amended as a result of material alterations in the fortune of one or the other spouse.
The right to receive the allowance shall be extinguished as a result of the removal of the cause which motivated it, or as a result of the creditor’s marrying again or living with another person in a situation akin to marriage.
The right to receive the allowance shall not be extinguished by the mere fact of the debtor’s death. Notwithstanding the foregoing, the latter’s heirs may request the Judge to reduce or suppress it if the estate cannot satisfy the requirements of the debt or if it should affect their right to a forced share.
On interim measures as a result of the claim for annulment, separation or divorce
Upon admission of the claim for annulment, separation or divorce, the following effects take place by operation of law:
1. The spouses may live separately and the presumption of marital cohabitation shall cease.
2. Consents and powers of attorney granted by either spouse to the other are revoked.
Likewise, save as otherwise agreed, the possibility of binding the exclusive property of the other spouse in the exercise of domestic powers shall cease.
For these purposes, either party may request the relevant note to be made in the Civil Registry and, as the case may be, in the Property and Commercial Registries.
Upon admission of the claim, the Judge, in the absence of a judicially approved agreement between both spouses shall adopt, after hearing the latter, the following measures:
1. To determine, in the interests of the children, with which spouse the children subject to the parental authority of both of them are to remain, and to make the appropriate decisions in accordance with the provisions of this Code and, in particular, the manner in which the spouse who does not exercise the custody and care of the children may comply with his obligation of watching over them, and the time, form and place in which he may communicate with them and have them in his company.
Exceptionally, children may be entrusted to grandparents, relatives or other persons who consent to it, and, in the absence thereof, to a suitable institution, conferring on the latter the relevant guardianship duties, which they shall exercise under the judge’s authority.
Where there should be a risk of abduction of the minor by one of the spouses or by third parties, the necessary measures may be adopted and, in particular, the following:
a) Prohibition to exit national territory, save with a prior judicial authorisation.
b) Prohibition to issue a passport to the minor, or removal thereof if one should already have been issued.
c) Submission of any change of domicile of the minor to prior judicial authorisation.
2. To determine, taking into account the family interest most requiring protection, which of the spouses shall continue using the family home and, likewise, after making an inventory thereof, which goods or objects pertaining to the appurtenances are to continue in the home and which are to be taken away by the other spouse, and the appropriate precautionary measures to preserve the rights of each of them.
- To set the contribution of each spouse to the marital expenses, including, if applicable, court costs, setting the basis to update any amounts and set any security, deposits, with holdings or other convenient precautionary measures, to ensure the enforcement of the amounts payable as a result by one spouse to the other.
The work performed by one of the spouses to attend to the children in common subject to parental authority shall be considered a contribution to such expenses.
- To determine, attending to the circumstances, any common property which, after making an inventory, is to be delivered to one spouse or the other, and the rules to be observed in the Administration and disposal thereof, and in the mandatory rendering of accounts relating to common property or the part thereof received thereby, and any required thereafter.
- To determine, as the case may be, the arrangements for the administration and disposal of any exclusive property which, as a result of marriage articles or pursuant to a public deed, should be especially earmarked to pay the marital expenses.
The spouse proposing to file a claim for annulment, separation or divorce may request the effects and measures mentioned in the two preceding articles.
Such effects and measures shall only subsist if, within the following 30 days counting from initial adoption thereof, the relevant claim should be filed before the competent Judge or Court.
The spouse who leaves the marital home for a just cause and within 30 days files the claim or request mentioned in the preceding articles shall not be in breach of the duty to cohabit.
The effects and measures provided in this chapter shall terminate, in any event, upon replacement thereof by those provided in the judgement or in the event of termination of the proceedings in any other way.
Revocation of any consents and powers of attorney shall be deemed to be final.
Law applicable to nullity, separation and divorce
1. The nullity of the marriage and its effects shall be determined in accordance with the law applicable to its performance.
2. Separation and divorce shall be governed either by the common national law of the spouses at the time of filing the claim; in the absence of a common nationality, by the law of the common habitual residence of the spouses at such time and, in the absence thereof, by the law of the last common habitual residence of the spouses, if one of the spouses should still be a resident in such State.
In any event, Spanish law shall apply when one of the spouses is Spanish or a habitual resident in Spain:
a) If none of the laws mentioned above should apply.
b) If both spouses, or one with the consent of the other, should request separation or divorce in the claim submitted
before a Spanish court.
c) If the laws mentioned in the first paragraph of this section should not acknowledge separation or divorce, or
should do it in a manner which is discriminatory or contrary to public policy.
On paternity and filiation
On filiation and its effects
Filiation may be by birth and by adoption. Filiation by birth may be matrimonial and non-matrimonial. It is matrimonial when the mother and father are married to each other.
Matrimonial and non-matrimonial filiation, and adoptive filiation, shall have the same effects, in accordance with the provisions of the present Code.
Filiation determines surnames, in accordance with the provisions of the law.
Filiation is determined by both lines, the father and mother may decide by common consent the order of transfer of their respective first surname, prior to registration. If this option is not exercised, the provisions of the law shall apply.
The order of surnames registered for the oldest child shall govern subsequent registrations of the birth of his siblings from the same union.
The child, upon coming of age, may request to alter the order of the surnames.
The father and mother, even if they do not hold parental authority, are obliged to care for their underage children and to provide them with support.
The parent who fulfils the following circumstances shall be excluded from parental authority and other guardianship duties, and shall not be entitled to any rights by operation of Law in respect of the child or his descendants, or to their estates:
1. If he has been sentenced as a result of the relations resulting in the conception, according to a final criminal
2. If filiation was determined judicially against his opposition.
In both cases, the child shall not bear the surname of the parent in question unless he or his legal representative should request it.
These restrictions shall cease to have effect by determination of the child’s legal representative, approved by the court, or by the will of the child himself upon reaching full legal capacity.
Obligations to look after children and to support them shall subsist notwithstanding the foregoing.
On determination and evidence of filiation
SECTION ONE. GENERAL PROVISIONS
Filiation shall be effective from the moment on which it takes place.
Its legal determination shall have retroactive effect, provided that such retroactivity is compatible with the nature of such effects and that the Law does not provide otherwise.
In any event, acts executed on behalf of the underage or incapable child by his legal representative before determination of filiation shall remain valid.
Filiation shall be evidenced by registration in the Civil Registry, by the document or judgement which legally determines it, by the matrimonial presumption of paternity and, in the absence of the preceding means, by possession of status. The provisions of the Civil Registry Law shall apply to the admission of evidence contrary to the registered entry.
The determination of filiation shall not be effective where another contradictory filiation should be on record.
Filiation entries may be rectified in accordance with the Civil Registry Law, without prejudice to the specific provisions in the present title on actions to challenge filiation.
Likewise, entries which contradict the facts declared proven by a criminal judgement may also be rectified at any time.
SECTION TWO. ON DETERMINATION OF MATRIMONIAL FILIATION
Maternal and paternal matrimonial filiation shall be legally determined:
1. By registration of the birth together with that of the parents’ marriage.
2. By a final judgement.
Children born after the marriage is performed and before three hundred days after the dissolution thereof, or after the legal or de facto separation of the spouses, shall be presumed to be children of the husband.
If the child should be born within 180 days following performance of the marriage, the husband may destroy the presumption by declaring otherwise in a public instrument executed within six months of his becoming aware of the birth.
The cases where he should have expressly or implicitly acknowledged his paternity, or should have been aware of the woman’s pregnancy prior to performing the marriage shall be excepted from the foregoing, save when, in the latter case, such declaration in a public instrument should have been executed, with the consent of both spouses, prior to the marriage or subsequently thereto, within six months following the birth of the child.
Even in the absence of the presumption of paternity of her husband as a result of the spouses’ legal or de facto separation, filiation may be registered as matrimonial with the consent of both.
Filiation shall become matrimonial from the date of the marriage of the parents, when the latter should take place subsequently to the birth of the child, provided that the fact of the filiation should be legally determined in accordance with the provisions of the following section.
The provisions of the preceding paragraph shall, as the case may be, benefit the descendants of the deceased child.
SECTION THREE. ON THE DETERMINATION OF NON-MATRIMONIAL FILIATION
Non-matrimonial filiation shall be legally determined:
1. By recognition before the officer in charge of the Civil Registry, in a will or in another public document.
2. By resolution issued in proceedings processed in accordance with the Civil Registry legislation.
3. By final judgement.
4. In respect of the mother, where maternal filiation should be provided in the registration of birth performed within
the requisite period, in accordance with the provisions of the Civil Registry Law.
Recognition made by incapable persons or persons who cannot marry by reason of their age shall require judicial approval, after hearing the Public Prosecutor, to be valid.
When a parent should recognise a child separately, he shall not be entitled to declare the identity of the other parent therein, unless this should already be legally determined.
Recognition of a child who is of legal age shall not be effective unless the latter’s express or implied consent is obtained.
The effectiveness of recognition by a minor or incapable person shall require the express consent of his legal representative or judicial approval, after hearing the Public Prosecutor, and of the legally recognised parent.
No consent or approval shall be necessary if recognition should have been made by will or within the period provided to register the birth. The registration of paternity thus practised may be suspended at the mere request of the mother during the year following the birth. If the father should request confirmation of the entry, judicial approval, after hearing the Public Prosecutor, will be required.
When the minor’s or incapable person’s parents should be siblings or consanguineous relatives in direct line, upon legal determination of filiation in respect of one, such filiation may only be legally determined in respect of the other prior judicial authorisation, which shall be granted, after hearing the Public Prosecutor, when it should be in the interest of the minor or incapable person.
When the latter should reach full capacity, he may, pursuant to statement in a public instrument, invalidate this last determination if he should not have consented to it.
Recognition of a child already deceased shall only be effective if his descendants should consent to it, by themselves or by means of their legal representatives.
On filiation actions
SECTION ONE. GENERAL PROVISIONS
Article 127 to 130
SECTION TWO. ON CLAIMS
Any person with a legitimate interest shall be entitled to claim declaration of a filiation manifested by constant possession of status.
The case where the claimed filiation should contradict another filiation legally determined shall be excepted therefrom.
In the absence of the corresponding possession of status, the claim of matrimonial filiation, which shall not be subject to a statute of limitations, corresponds to the father, the mother or the child.
If the child should die before the lapse of four years from his reaching full capacity, or during the year following discovery of the evidence on which the claim should be based, the action shall pass to his heirs for the time required to complete such periods.
The action to claim non-matrimonial filiation, in the absence of the respective possession of status, shall correspond to the child during his entire lifetime.
If the child were to die before four years have lapsed from him reaching full capacity, or during the year following discovery of the evidence on which the claim would be based, the action shall pass on to his heirs for the time required to complete such periods.
Exercise of the claim by the child or the parent, in accordance with the preceding articles, shall in any event allow the challenging of contradictory filiation.
SECTION THREE. ON CONTESTING PATERNITY
The husband may exercise the action to contest paternity within one year counting from registration of the filiation with the Civil Registry. Notwithstanding the foregoing, such period shall not begin to count while the husband is unaware of the birth.
If the husband were to die before the period provided in the preceding Paragraph lapses, the action shall correspond to each heir for the time remaining to complete such period.
If the husband were die without being aware of the birth, the year shall count from the date on which the heir becomes aware thereof.
Paternity may be contested by the child during the year following registration of the filiation. If he should be underage or incapable, the period shall count from his coming of age or reaching full legal capacity.
Exercise of the action on behalf of the child who is underage or incapacitated shall likewise correspond, during the year following registration of the filiation, to the mother holding parental authority, or to the Public Prosecutor
If possession of status of matrimonial filiation should be absent from family relations, the claim may be filed at any time by the child or his heirs.
3 The first Paragraph was declared unconstitutional by Judgment of the Constitutional Court 273/2005, of 27th October. The Judgment of the Constitutional Court 52/2006, of 16th February, concurred therewith. 4 The first Paragraph was declared to be unconstitutional by Judgment of the Constitutional Court 138/2005, of 26th May. The Judgment of the Constitutional Court 156/2005, of 9th June, concurred therewith.
The recognitions which determine matrimonial filiation in accordance with the Law may be contested as a result of a defect of consent, in accordance with the provisions of article 141. The contest of paternity for other causes shall be governed by the rules contained in this section.
A woman may contest her maternity by justifying the simulation of the birth, or that the child’s identity is false.
If possession of status should be absent from family relations, non-matrimonial paternal or maternal filiation may be contested by those to whom it is prejudicial.
In the event of existence of possession of status, the contesting action shall correspond to the person who appears as child or parent, and to those who may be affected by the filiation as forced heirs. The action shall lapse by peremption after four years from the date on which the child, after registration of the filiation, should have the corresponding possession of status.
Children shall in any event be entitled to exercise the action for one year after having reached full legal capacity.
The action to contest the recognition of a child made under error, duress or intimidation shall correspond to the person who granted such recognition. The action shall lapse by peremption after one year from such recognition or from the time in which the defect of consent ceased, and may be exercised or continued by the latter’s heirs, if he should have deceased, before the lapse of one year. TITLE VI
On support between relatives
Support shall be deemed to mean everything which is indispensable for food, shelter, dress and medical assistance.
Support shall also comprise education and instruction of the recipient of support while he is underage and even thereafter, when he has not finished his training for a cause not attributable to him.
Support shall include pregnancy and delivery expenses, if not otherwise covered.
The following persons shall be mutually obliged to give each other support with the scope provided in the preceding article:
2. Ascendants and descendants.
Siblings shall only owe one another basic living needs, when needed for any reason not attributable to the recipient of support; these shall extend, as the case may be, to the support required for their education.
The claim for support, where applicable and where two or more persons should be obliged to provide it shall be made in the following order:
1. To the spouse.
2. To descendants in the nearest degree.
3. To ascendants, also in the nearest degree.
4. To siblings, provided that uterine or consanguine siblings shall be obliged in the last place.
Degree between descendants and ascendants shall be regulated by the order in which they are called to intestate succession of the person entitled to support.
Where the obligation to provide support should fall on two or more persons, payment of the allowance shall be shared between them in proportion to their respective wealth.
Notwithstanding the foregoing, in case of urgent need and as a result of special circumstances, the Judge may oblige a single one of them to provide it provisionally, without prejudice to his rights to claim from the remaining obligors the part which corresponds to them.
When two or more recipient of supports should claim support at the same time from the same person legally obliged to provide them, and such person should not have sufficient wealth to attend to all of them, the order provided in the preceding article shall be followed, unless the recipient of supports should be the spouse and a child subject to parental authority, in which case the latter shall be preferred over the former.
The amount of the support shall be proportional to the estate or resources of the person who provides it and the needs of the person receiving it.
Support, in the cases mentioned in the preceding article, shall be proportionally reduced or increased according to the increase or reduction in the needs of the recipient of support and the wealth of the person obliged to satisfy it.
The obligation to provide support shall be payable from the time on which the person entitled to receive them should need them to subsist; but they shall not be paid until after the date on which the relevant claim should be filed
Payment shall be verified monthly in advance and, upon the death of the recipient of support, his heirs shall not be obliged to return any amounts received by the latter in advance.
The Judge, at the request of the recipient of support or of the Public Prosecutor, shall issue, on an urgent basis, the relevant precautionary measures to ensure payment of the advances made by a public Entity or by another person, and to provide for future needs.
The person obliged to provide support may, at his discretion, satisfy it either by paying the allowance set, or receiving and keeping in his own home the person entitled to receive it.
This choice shall not be possible to the extent that it contradicts the cohabitation arrangements provided under applicable law or by judicial resolution for the recipient of support. It may also be rejected in the event of just cause or where it should be prejudicial to the interests of the underage recipient of support.
The obligation to provide support shall cease with the death of the obligor, even if he should provide it in compliance with a final judgement.
The right to receive support cannot be waived or transferred to a third party. Neither may it be offset against the amounts owed by the recipient of support to the person obliged to provide it.
However, outstanding support allowances may be subject to set-off and waived, and the right to claim them may be transferred for valuable consideration or as a gift.
The obligation to provide support shall also cease:
1. By the death of the recipient of support.
2. When the wealth of the person obliged to provide it should have been reduced to a point where he is unable to
satisfy it without neglecting his own needs and those of his family
3. When the recipient of support is able to carry out a trade, profession or industry, or has obtained a position or
improved in wealth, so that the support allowance is no longer necessary for his subsistence.
4. When the recipient of support, whether or not a forced heir, should have committed any offence giving rise to
5. Where the recipient of support is a descendant of the person obliged to provide support, and the latter’s need
should arise from his bad conduct or lack of application at work, while this cause subsists.
The preceding provisions shall apply to the remaining cases where, pursuant to this Code, to a will or to an agreement, a person should be entitled to receive support, save as otherwise agreed, ordered by the testator or provided by the law for the relevant special case.
On parent-child relations
Non-emancipated children shall be under the parents’ parental authority.
Parental authority shall be exercised always for the benefit of the children, according to their personality, and respecting their physical and psychological integrity.
This authority comprises the following duties and powers:
1. To look after them, to have them in their company, feed them, educate them and provide them with a
2. To represent them and to manage their property.
If the children should have sufficient judgement, they must be heard always before adopting decisions that affect them.
Parents may, in the exercise of their powers, request the assistance of the authorities.
1. Obey their parents while they remain under their parental authority and always respect them.
2. Equitably contribute, according to their possibilities, to the discharge of family expenses while they live with
Parental authority shall be exercised jointly by both parents, or by one of them with the express or implied consent of the other. Acts performed by one of them according to social practice and circumstances or in situations of urgent need shall be valid.
In the event of disagreement, either of them may appear before the Judge, who, after hearing both of them and the child, if he should have sufficient judgement and, as the case may be, if he should be older than twelve, shall confer without further recourse the ability to decide to the father or the mother. In the event of repeated disagreement, or if there should be any other cause which severely hinders the exercise of parental authority, he may confer it in whole or in part to one of the parents, or distribute duties between them. This measure shall remain in force during the period provided, which may never exceed two years.
In the cases provided in the preceding paragraphs, in respect of third parties in good faith, each parent shall be presumed to act in the ordinary exercise parental authority with the consent of the other.
In the absence thereof, or as a result of the absence, incapacity or impossibility of one of the parents, parental authority shall be exclusively exercised by the other.
If the parents should live separately, parental authority shall be exercised by the parent with whom the child lives. Notwithstanding the foregoing, the Judge, at the duly justified request of the other parent, may, in the interests of the child, confer parental authority to the applicant, to be exercised jointly with the other parent, or distribute between the father and the mother the duties inherent to its exercise.
The non-emancipated minor shall exercise parental authority over his children with the assistance of his parents and, in the absence thereof, his guardian; in the event of disagreement or impossibility, with that of the Judge.
The Judge, ex officio or at the request of the child, of any relative or of the Public Prosecutor, shall order:
1. Suitable measures to ensure the provision of support, and to provide for the future needs of the child by his
parents, in the event of breach of such duty.
2. Adequate provisions to prevent harmful disturbance to the children in cases of change of the holder of custody.
3. Necessary measures to prevent the abduction of underage children by one of the parents or by third parties
and, in particular, the following:
a) Prohibition to exit national territory, save with a prior judicial authorisation.
b) Prohibition to issue a passport to the minor, or removal thereof if one should already have been issued.
c) Submission to prior judicial authorisation of any change of domicile of the minor.
4. Generally, other provisions deemed suitable, to remove the minor from danger or to prevent any damages
All these measures may be adopted within any civil or criminal proceedings, or in voluntary jurisdiction proceedings.
If the parents live separately and are unable to decide by common consent, the Judge shall decide, always for the benefit of the children, in the custody of which parent the underage children are to remain. The Judge, before taking this measure, shall hear the children who have sufficient judgement and, in any event, those older than twelve.
The parents, even if they do not exercise parental authority, are entitled to a relationship with their underage children, except with those adopted by another, in accordance with the provisions of the judicial resolution.
Personal relationships between the child and his grandparents and other relatives and close friends may not be prevented without just cause.
In the event of opposition, the Judge, at the request of the minor, his grandparents, relatives or close friends, shall decide, attending to the circumstances. He must especially ensure that the measures which may be set to favour relations between grandparents and grandchildren do not enable the infringement of judicial resolutions restricting or suspending relations between the minors and one of the parents.
In the case of a minor in foster care, the right of his parents, grandparents and other relatives to visit him and have a relationship with him may be regulated or suspended by the Judge, attending to the circumstances and in the interests of the minor.
Legal representation of children
Parents who hold parental authority shall have the legal representation of their underage non-emancipated children.
The following cases shall be excepted:
1. Acts relating to rights of personality or others which the child, in accordance with the Law and to his maturity,
may perform by himself.
2. Those where there is a conflict of interest between the parent and the child.
3. Those relating to property which is excluded from the parents’ administration.
Entering into contracts which oblige the child to perform personal services shall require the child’s consent, if he should have sufficient judgement, without prejudice to the provisions of article 158.
Whenever, in any affair, the father’s and mother’s interest should be opposed to that of their non-emancipated children, the latter shall be appointed a defender who shall represent them in court and out of court. This appointment shall also take place when the parents’ interest is opposed to that of the underage emancipated child whose capacity they are required to supplement.
If the conflict of interest should exist only in respect of one of the parents, the other shall be entitled to represent the minor or supplement his capacity by operation of Law and without the need for a specific appointment.
On children’s property and its administration
Parents shall administer their children’s property with the same diligence as they do their own, in compliance with the general obligations applicable to any administrator, and with the specific obligations set forth in the Mortgage Law.
The following property shall be excepted from parental administration:
1. Property acquired as a gift, where the grantor should have ordered it expressly. The will of the transferor on the
administration of this property and the destination of its fruits shall be strictly complied with.
2. Property acquired by succession when one or both of the persons exercising parental authority should have been justly disinherited or should have been unable to inherit as a result of being unworthy, which shall be administered by the person designated by the decedent and, in the absence thereof, successively, by the other parent or by a specially appointed judicial administrator.
3. Property acquired by the child older than sixteen by his work or industry. Ordinary acts of administration shall
be performed by the child, who shall need the parents’ consent for acts exceeding the former.
The fruits of the property of the non-emancipated child, and anything acquired by his work or industry shall always belong to him.
Notwithstanding the foregoing, the parents may destine the property of the minor who lives with both or with one of them, in the corresponding part, to the discharge of family expenses, and they shall not be obliged to render accounts of any property consumed for such purposes.
For these purposes, the fruits of the property not administered by the parents shall be delivered to then. Fruits of property mentioned in numbers one and two of the preceding article and those gifted or left to children especially for their education or career shall be excepted from the above, but, if the parents should lack of means, they may request the Judge to have an equitable part delivered to them.
Parents may not waive the rights held by the children, nor dispose of or encumber any real estate properties, commercial or industrial establishments, precious objects and securities, except for preferred subscription right over shares, save for a just cause of utility or necessity, prior authorisation of the Judge of their domicile, after hearing the Public Prosecutor.
Parents must obtain judicial authorisation to reject an inheritance or legacy left to the child. If the Judge should refuse the authorisation, the inheritance may only be accepted under the benefit of inventory.
No judicial authorisation shall be required if the minor should be sixteen years of age and should consent in a public document, nor to dispose of securities, provided that the proceeds are reinvested in safe goods or securities.
Where the parents’ administration should endanger the net assets of the child, the Judge, at the request of the child himself, of the Public Prosecutor or of any relative of the minor, may issue any orders deemed necessary for the safety and safekeeping of the property, require security or a bond for their continuation in the administration thereof or even appoint an Administrator.
Upon termination of parental authority, the children may require the parents to render accounts of the administration performed over the property until then. The action to enforce this obligation shall be statute barred after three years.
In the event of loss or impairment of the property as a result of wilful misconduct or gross negligence, the parents shall be liable for any damages suffered.
On termination of parental authority
Parental authority shall end:
1. By the death or declaration of death of the parents or the child.
2. By emancipation.
3. By the adoption of the child.
The father or the mother may be deprived in whole or in part of their authority pursuant to a judgement on grounds of the breach of the duties inherent thereto, or issued in criminal or matrimonial proceedings.
The Courts may, for the benefit and in the interest of the child, decide the recovery of parental authority when the cause which motivated the deprivation should have ceased.
Parental authority over children who should have been incapacitated shall be extended, by operation of Law, upon their coming of age. If a child who is of legal age, unmarried, and lives in the company of his parents or of any of them should be incapacitated, parental authority shall be restored, and shall be exercised by the person who would be entitled to do so if the child were underage. Extended parental authority in any of these two forms shall be exercised subject to the specific provisions of the incapacitation resolution and, on a subsidiary basis, to the rules of the present Title.
Extended parental authority shall terminate:
1. By the death or declaration of death of both parents or the child.
2. By adoption of the child.
3. By declaration of the incapacity having ceased.
4. By marriage of the incapacitated person.
If, upon termination of the extended parental authority, the incapacitation should subsist, guardianship or conservatorship shall be appointed, as applicable.
On adoption and other forms of protection of minors
SECTION ONE. ON CUSTODY AND FOSTER CARE OF MINORS
1. When the public entity entrusted with the protection of minors in the respective territory should become aware that a minor is in a situation of neglect, it shall have by operation of Law the guardianship of such minor, and must adopt the necessary protection measures for his custody, making the Public Prosecutor aware of this, and giving notice to the parents, guardians or carers in due legal form, within forty eight hours. Whenever possible, at the time of giving such notice, they shall be informed in their presence and in a clear and comprehensible manner of the causes which have given rise to the Administration’s intervention and the possible effects of the decision adopted.
A situation of neglect shall be deemed to exist de facto as a result of the breach or the impossible or inadequate exercise of the protection duties set forth by the laws for the custody of minors, when they should be deprived of the necessary moral or material assistance.
The assumption of guardianship by the public entity shall entail the suspension of parental authority or ordinary guardianship. Notwithstanding the foregoing, acts of patrimonial content performed by the parents or guardians on behalf of the minor which are beneficial to the latter shall be valid.
2. When the parents or guardians, as a result of serious circumstances, cannot take care of the minor, they may request the competent public entity to assume his custody for the necessary period of time.
The transfer of custody shall be set forth in writing, expressly noting that the parents or guardians have been informed of their responsibilities they continue to hold in respect of the child, and the manner in which such custody will be exercised by the Administration.
Any subsequent variation in the form of exercise shall be duly grounded and communicated to the former, and to the Public Prosecutor.
Likewise, the public entity shall assume custody when so resolved by the Judge in cases where it is legally applicable.
3. Custody assumed at the request of parents or guardians or as a result of guardianship assumed by operation of law shall be performed by means of family foster care or residential care. Family foster care shall be exercised by the person or persons determined by the public entity. Residential care shall be exercised by the Director of the centre where the minor is taken in.
Within two months, the parents or guardians of the minor may challenge the administrative resolution deciding the foster care if they consider that the form of care decided is not the most convenient for the minor, or if there should exist other persons within the family circle more suitable to those designated.
4. The interest of the minor shall always be sought, and the Administration shall try to achieve his reintegration into his own family, if not contrary to such interest, and to have siblings entrusted to the custody of the same institution or person.
5. If serious problems should arise in the cohabitation between the minor and the person or persons who have been entrusted with his custody, the minor or an interested party may request his removal therefrom.
6. Resolutions which acknowledge the existence of neglect and declare the assumption of guardianship by operation of law may be appealed before the civil jurisdiction, within the period and subject to the conditions set forth in the Civil Procedural Law, without the need to file a prior administrative claim.
7. During a period of two years as from notice of the administrative resolution declaring the existence of neglect, parents who continue to hold parental authority but have been suspended in the exercise thereof in accordance with the provisions of number one of this article shall be entitled to request termination of such suspension, and revocation of the declaration of the minor’s neglect, if, as a result of a change in the circumstances which motivated it, they should understand that they are in a condition to assuming parental authority once again.
They shall likewise be entitled to challenge any decisions adopted in respect of the minor’s protection during the same period.
After such period has elapsed, their right to request or challenge decisions or measures adopted for the protection of the minor will lapse. Notwithstanding the foregoing, they may inform the public entity and the Public Prosecutor of any change in the circumstances which gave rise to the declaration of neglect.
8. The public entity, ex officio, or at the request of the Public Prosecutor or of an interested person or entity, may at all times revoke the declaration of neglect and decide the return of the minor to his family, if he is not integrated in a stable manner in another family, or if it should understand that it is in the best interests of the minor. Such decision shall be notified to the Public Prosecutor.
1. Family foster care produces the full participation of the minor in family life and imposes on the foster parent the obligations of taking care of him, having him in his company, feeding him, educating him and providing him with a comprehensive upbringing.
This foster care may be exercised by the person or persons who replace the minor’s nuclear family or by the person responsible for the home.
2. Foster care shall be executed in writing, with the consent of the public entity, whether or not it holds the guardianship or custody, of the persons who take the minor in, and of the minor if he should be older than twelve years old. When the parents who have not been deprived of parental authority or the guardian should be known, they shall also be required to give or to have given their consent, save in the event of provisional family foster care referred to in section 3 of this article.
The document executing the family foster care mentioned in the preceding paragraph shall include the following items:
1. The necessary consents.
2. Form of the foster care and expected duration thereof.
3. Rights and duties of each of the parties and, in particular:
a. Regularity of any visits by the family of the minor taken into foster care.
b. Coverage of the damage suffered by the minor or any damage which he may cause to third parties by the
public entity or other persons liable from a civil standpoint.
c. Assumption of food and board, education and health care expenses.
4. The content of any monitoring to be performed by the public entity, depending on the purpose of the foster care,
and the foster family’s undertaking to cooperate.
5. Economic compensation to be received by the foster parents, as the case may be.
6. It shall be expressly noted whether the foster parents act as professionals or if the foster care is to take place
in a functional home.
7. Report by the childcare services.
Such document shall be forwarded to Public Prosecutor.
3. If the parents or guardians should not consent or should challenge the foster care, such care may only be decided by the Judge, in the interests of the minor, in accordance with the formalities of the Civil Procedural Law. The proposal of the public entity shall contain the same items mentioned in the preceding number.
Notwithstanding the foregoing, the public entity may decide, in the interests of the minor, a provisional family foster care, which will subsist until the relevant judicial resolution is passed.
The public entity, after performing the requisite formalities and upon completion of the proceedings, must submit a proposal to the Judge immediately and, in any event, within fifteen days.
4. The foster care of the minor shall cease:
1. By judicial resolution.
2. By decision of the foster parents, prior notice thereof to the public entity.
3. At the request of the guardian or the parents with parental authority wishing to have him in their company.
4. By decision of the public entity who holds the guardianship or custody of the minor, when it deems it necessary
to safeguard the interests of the latter, after hearing the foster parents.
A judicial resolution of cessation shall be required when the foster care should have been decided by the Judge.
5. All actions of execution and cessation of the foster care shall be practised with mandatory secrecy.
Article 173 bis
Family foster care may adopt the following forms, depending on its purpose:
1. Simple family foster care, which shall be provisional, either because, as a result of the minor’s situation, he is expected to be reintegrated in his own family, or until a more stable protection measure is adopted.
2. Permanent family foster care, when the age or other circumstances of the minor and his family advise it, and the child care services should have reported favourably on it. In such case, the public entity may request the Judge to confer on the foster parents those faculties of guardianship which facilitate the performance of their responsibilities, attending in any event to the higher interest of the minor.
3. Pre-adoptive family foster care, which shall be executed by the public entity upon making the proposal for the adoption of the minor, prior report by the childcare services, to the judicial authority, provided that the foster parents meet the necessary requirements to adopt, have been selected and have given their consent to the adoption before the public entity, and that the minor is in a suitable legal situation to be adopted.
The public entity may likewise execute pre-adoptive family foster care when it considers, prior to submitting the adoption proposal, that it is necessary to set a period for the minor to adapt to the family. This period shall be as brief as possible and, in any event, may not exceed one year.
1. The Public Prosecutor shall be in charge of the higher supervision of the guardianship, foster care or custody of the minors mentioned in this Section.
2. For such purposes, the public entity shall give immediate notice of any new entries of minors and shall forward a copy of the administrative resolutions and execution documents relating to the constitution, variation and cessation of any guardianship, custody and foster care. Likewise it will inform it of any interesting developments in the minor’s circumstances.
The Public Prosecutor must check the situation of the minor at least every semester and shall propose to the Judge any protection measures deemed necessary.
3. The Public Prosecutor’s vigilance shall not exempt the public entity from its responsibility vis-a-vis the minor and from its obligation to make the Public Prosecutor aware of any anomalies observed.
SECTION TWO. ON ADOPTION
1. Adoption shall require that the prospective adoptive parent is older than 25. In an adoption by both spouses, it will be sufficient for one of them to have reached such age. In any event, the prospective adoptive parents must be at least fourteen years older than the adoptee.
2. Only non-emancipated minors may be adopted. As an exception, it will be possible to adopt a person of legal age or an emancipated minor when, immediately prior to the emancipation, there should have existed an uninterrupted situation of foster care or of cohabitation, initiated before the prospective adoptee became fourteen.
3. One may not adopt:
1. A descendant.
2. A relative in the second degree in the collateral line by consanguinity or affinity.
3. A ward by his guardian until final approval of the accounts of the guardianship.
4. Nobody may be adopted by more than one person, unless the adoption is performed jointly or successively by both spouses. Marriage performed subsequently to the adoption shall allow the spouse to adopt the children of his consort. In the event of death of the adoptive parent, or when the adoptive parent should incur in the grounds for exclusion provided in article 179, a new adoption of the adoptee shall be possible.
1. The adoption shall be constituted by judicial resolution, which shall take into account always the interests of the prospective adoptee and the suitability of the prospective adoptive parent or parents for the exercise of parental authority.
2. To initiate the adoption proceedings, a prior proposal of the public entity shall be required in favour of the prospective adoptive parent or parents who have been declared suitable to exercise parental authority by the public entity. The declaration of suitability may be prior to the proposal.
Notwithstanding the foregoing, no proposal shall be required when the prospective adoptee meets any of the following circumstances:
1. Being an orphan and a relative of the prospective adoptive parent in the third degree by consanguinity or affinity.
2. Being a child of the consort of the prospective adoptive parent.
3. Having been in legal foster care under a measure of a pre-adoptive foster care, or having been under his
guardianship for the same time.
4. Being of legal age or an emancipated minor.
3. In the first three cases of the preceding section, the adoption may be constituted even if the prospective adoptive parent should have deceased, if the latter should already have given his consent before the Judge. In this case, the judicial resolution shall have retroactive effect to the date of such consent.
1. The prospective adoptive parent or parents and the adoptee older than twelve must consent to the adoption in the presence of the Judge.
2. The following persons must consent to the adoption in the manner set forth in the Civil Procedural Law:
1. The spouse of the prospective adoptive parent, save in the event of legal separation pursuant to a final
judgement or de facto separation by mutual consent set forth in a public instrument.
2. The parents of the prospective adoptee who is not emancipated, unless they should be deprived of parental authority by final judgement or they should incur in a legal cause for such deprivation. Such situation may only be appreciated in contradictory judicial proceedings, which may be processed as provided in article 1827 of the Civil Procedural Law.
Such consent shall not be required when it is impossible for those who must provide it to do so, which impossibility shall be duly grounded in the judicial resolution constituting the adoption.
The consent of the mother may not be given until after 30 days have elapsed from the birth.
3. The following persons must simply be heard by the Judge:
1. Parents who have not been deprived of parental authority where their consent should not be necessary for the
2. The guardian and, as the case may be, the carer or carers.
3. The adoptee who is younger than twelve, if he should have sufficient judgement.
4. The public entity, in order to appreciate the suitability of the prospective adoptive parent, when the adoptee
should have been legally under the former’s foster care for more than one year.
1. The adoption gives rise to the extinction of any legal relations between the adoptee and his former family.
2. As an exception, legal relations with the family of the parent shall subsist, as applicable, in the following cases:
1. When the adoptee should be the child of the spouse of the prospective adoptive parent, even if the consort
should have died.
2. When only one of the parents has been legally determined, provided that it should have been requested by the prospective adoptive parent, the adoptee older than twelve and the parent whose relation therewith is to persist.
3. The provisions of the preceding sections shall be understood to be without prejudice to the provisions relating to matrimonial impediments.
1. The Judge, at the request of the Public Prosecutor, of the adoptee or of his legal representative, shall resolve that the adoptive parent who incurs in a cause for deprivation of parental authority shall be excluded from guardianship duties and from the rights to which he is entitled pursuant to the Law in respect of the adoptee or his descendants, or to their estates.
2. Upon reaching full capacity, such exclusion may only be requested by the adoptee, within the following two years.
3. These restrictions shall cease to be effective by determination of the child himself upon reaching full capacity.
1. Adoption is irrevocable.
2. The Judge shall resolve the extinction of adoption at the request of the father or the mother who, without fault on their part, should not have taken part in the proceedings in the terms expressed in article 177. The claim shall also be required to be filed within two years following the adoption, and that the requested extinction does not cause serious harm to the minor.
3. Termination of the adoption shall not be a cause of loss of nationality or civil residence acquired, nor shall it affect any patrimonial effects which should have taken place before.
4. Determination of the filiation corresponding to the adoptee by birth shall not affect adoption.
5. Adopted persons, after reaching legal age or while being underage, represented by their parents, shall be entitled to know any data relating to their biological origin. Spanish childcare Public Entities, prior notice to any affected persons, shall provide, through their specialised services, the advice and assistance required by any applicants to bring this right to effect.
Declaration of absence and its effects
In any event, upon the disappearance of the person from his domicile or from his last place of residence, without having any further news of him, the Judge may, at the request of the interested party or of the Public Prosecutor, appoint a defender to protect and represent the disappeared person in court or in any business which does not admit delay without serious detriment. Those cases where the former should already have legal or voluntary representation in accordance with article 183 shall be excepted.
The present spouse who is of legal age and not legally separated shall be the ex officio defender and representative of the disappeared person; and, in the absence thereof, the nearest relative up to the fourth degree, also of legal age. In the absence of relatives, lack of presence thereof or notorious urgency, the Judge shall appoint a solvent person with good background, after hearing the Public Prosecutor.
He may also adopt, at his proof discretion, any necessary orders for the preservation of the assets.
The following persons shall have the obligation to promote and request the legal declaration of absence, without order of preference:
1. The spouse of the absentee who is not legally separated from him.
2. Consanguineous relatives up to the fourth degree.
3. The Public Prosecutor, ex officio or pursuant to a complaint.
Any person who rationally deems to have any right over the property of the disappeared person exercisable during his life or dependent on his death shall also be entitled to request such declaration.
A person who has disappeared from his domicile or last place of residence shall be deemed to be under a situation of legal absence:
1. After one year has elapsed from the last news of him, or, in the absence thereof, from his disappearance, if he
should not have left an attorney with powers of administration over all his property.
2. After three years have elapsed, if he should have empowered someone to the administration of all his property.
The death or justified resignation of the attorney, or the expiration of the mandate, shall determine legal absence, if, upon occurrence thereof, the whereabouts of the disappeared person should be unknown and one year should have elapsed from the last news of him or, in the absence thereof, from his disappearance. Upon registration of the declaration of absence in the Central Registry, all general or special mandates executed by the absentee shall be terminated by operation of law.
Save in the event of a serious reason appreciated by the Judge, the representation of the person declared an absentee, the investigation of his whereabouts, the protection and administration of his property and the performance of his obligations shall correspond to:
1. The present spouse of legal age not legally or de facto separated from him.
2. His child of legal age; if there should be several, those who lived with the absentee shall be preferred, and an
older child shall be preferred over a younger child.
3. The nearest youngest ascendant of either line.
4. Siblings of legal age who have cohabited as a family with the absentee, with preference of older siblings over
In the absence of the aforementioned persons, such representation shall correspond, in all its scope, to the solvent person of good background designated by the Judge at his prudent discretion, after hearing the Public Prosecutor.
The representative of the person declared an absentee shall be subject to the following obligations:
1. To make an inventory of movable property and to describe any immovable property of his principal.
2. To provide the bond prudentially set by the Judge. The representatives included in numbers 1, 2 and 3 of the
preceding article shall be excepted.
3. To preserve and defend the assets of the absentee and obtain from his property any normal returns of which it
4. To comply with the rules provided in the Civil Procedural Law relating to possession and administration of the
The provisions governing the exercise of guardianship and grounds for ineligibility, removal and excuse of guardians shall apply to the appointed representatives of the absentee, to the extent that they are adapted to their special representation.
The legitimate representatives of the person declared an absentee included in numbers 1, 2 and 3 of article 184 shall enjoy the temporary possession of the assets of the absentee and shall be entitled to the liquid products thereof in the amount set forth by the Judge, taking into account the amount of any fruits, rents and benefits, the number of children of the absentee and the obligations to support them, the care and actions required by the representation, any earmarks which encumber the assets and other circumstances of the kind.
The legitimate representatives included in number 4 of the aforementioned article shall also enjoy the temporary possession of the assets and shall be entitled to their fruits, rent and benefits in the amount set forth by the Judge, without in any event being entitled to retain more than two thirds of any liquid products, and the remaining third shall be reserved for the absentees or, as the case may be, for his heirs or successors.
Temporary possessors of the property of the absentee may not sell, encumber, mortgage or pledge, save in the event of evident need or utility, acknowledged and declared by the Judge, who, in authorising such acts, shall determine the destination to be given to the amount obtained therefrom.
If, during the enjoyment of temporary possession or the exercise of the appointed representation, anyone should prove his preferential right to such possession, the current possessor shall be excluded, but the former shall not be entitled to the products but from the date of the filing of the claim. In the event of appearance of the absentee, his assets must be restored to him, but not the products received, save in the event of bad faith, in which case such restitution shall also comprise any fruits received and those which ought to have been received counting from the date on which the absence took place, according to the judicial declaration.
If, during the course of the temporary possession or the exercise of the appointed representation, the death of the person declared an absentee should be proved, his succession shall be opened for the benefit of those who, at the time of his death, should have been his voluntary or legitimate successors, and the temporary possessor must deliver the estate of the decedent to them, retaining as his own the products received in the amount provided herein.
If a third party should appear, evidencing by means of a public instrument having acquired, pursuant to purchase or by another title, property from the absentee, the representations shall cease in respect of such property, which shall be made available to its legitimate titleholders.
The spouse of the absentee shall be entitled to separation of estates.
In order to claim a right on behalf of the absentee it is necessary to evidence that this person existed at the time in which his existence was necessary to acquire it.
Without prejudice to the provisions of the preceding article, upon opening of a succession to which an absentee should be called, his part shall accrue in favour of his co-heirs, if there is no person entitled to claim it. All of them, as the case may be, must make an inventory of such property, with the intervention of the Public Prosecutor, which shall be reserved until the declaration of death.
The provisions of the preceding article shall be understood to be without prejudice of any actions to claim an inheritance or any rights to which the absentee, his representatives or his successors should be entitled. Such rights shall only be extinguished by the passage of the time provided as statute of limitations. Any entry in the Registry of any immovable property accruing in favour of any co-heirs shall express the circumstance that they remain subject to the provisions of this article and the preceding one.
On the declaration of death
The declaration of death shall apply:
1. After ten years have elapsed since the last news of the absentee or, in the absence thereof, since his
2. After five years have elapsed since the last news of him or, in the absence thereof, since his disappearance, if,
upon expiration of such period, the absentee should have reached seventy five.
The aforementioned periods shall be calculated from the expiration of the calendar year on which the last news of
him was received or, in the absence thereof, from the year of his disappearance.
3. After two years have elapsed, counted from date to date, from an imminent risk of death as a result of accident or violence, suffered by a person without receiving any news of him subsequently to the accident or the violence.
Violence shall be presumed if, in a state of political or social unrest, a person should have disappeared without receiving any news of him during the aforementioned period, provided that six months should have elapsed from the end of such unrest.
The declaration of death shall also apply:
1. In respect of persons who, belonging to an armed contingent or linked thereto as voluntary ancillary offices of, or as reporters, should have taken part in campaign operations and should have disappeared in them, after the lapse of two years, counted from the date of the peace treaty and, in the absence thereof, from the official declaration of the end of the war.
2. In respect of those persons who should be on board a shipwreck or who should have disappeared as a result of immersion in the sea, after the lapse of three months from the ascertainment of the shipwreck or disappearance without having news of them.
The shipwreck shall be presumed to have occurred if the vessel does not reach its destination or, if, lacking a fixed destination, it should not return, in both cases after the lapse of six months counting from the last news received of it or, in the absence thereof, from the date of departure of the vessel from the initial port of the journey.
3. Of those persons who should be on board an aeroplane crash, after the lapse of three months from the ascertainment of the crash, without having had news of them or, in the event that human remains should have been found, if they should have been unable to be identified.
An aeroplane crash shall be deemed to have occurred if, in a flight over the sea, or desert or uninhabited areas, six months should have elapsed from the last news received from the persons or from the aircraft and, in the absence thereof, from the date on which the journey should have begun. If the flight should be in stages, the aforementioned period shall be computed from the point of takeoff from which the last news should have been received.
The declaration of death shall put an end to the situation of legal absence, but until such declaration takes place, the absentee shall be presumed to have lived until the time on which he must be reputed to have died, save as otherwise determined in an investigation.
Any declaration of death shall express the date from which the death is deemed to have occurred, in accordance with the provisions of the preceding articles, unless there is evidence to the contrary.
Upon the declaration of death of the absentee’s becoming final, succession to his estate shall be opened, and such estate shall be adjudicated pursuant to the formalities of testamentary or intestate proceedings, or out of court.
The heirs may not dispose of the inheritance pursuant to gift until five years after the declaration of death.
Until the lapse of this same period, no legacies, if any, shall be handed over, and the legatees shall not be entitled to request them, save for pious donations for the soul of the deceased, or legacies in favour of Charitable Institutions.
The successors shall have the inescapable obligation, even if, there only being one of them, no partition should be necessary, to write a detailed inventory of movable property and a description of any real estate property before a notary public.
If, after the declaration of death, the absentee should appear or his existence should be proved, he shall recover his property in its current condition, and shall be entitled to the price of any properties sold, or to any properties acquired with such price, but may not claim from his successors any rents, fruits or products obtained from the properties of his estate, until the day of his presence or of the declaration of not having died.
On the Central Registry of absentees
The Central and public absentee registry shall register:
1. Judicial declarations of legal absence.
2. Judicial declarations of death.
3. Legitimate and appointed representations resolved by the courts and termination thereof.
4. A mention, including all circumstances thereof, of the place, date, executors and authorising Notary Public of
the inventories of movable property and description of immovable properties provided in this title.
5. A mention, including all circumstances thereof, of the order conferring such representation, and of the place, date, executors and authorising Notary Public of any public deeds of transfer and encumbrance made, with judicial authorisation, by absentees’ legitimate or appointed representatives; and
6. A mention, including all circumstances thereof, of the place, date, executors and authorising Notary Public, of the public deed of description or inventory of properties, and of the public deeds of partition and adjudication executed pursuant to the declaration of death, or the deeds of validation of the partitional papers, as the case may be.
No one may be declared incapable save pursuant to a court judgement pursuant to the causes set forth in the Law.
Persistent physical or mental illnesses or deficiencies which prevent a person from governing himself shall be causes for incapacitation.
Minors may be incapacitated if a cause for incapacitation should apply to them and is reasonably expected to persist after they come of age.
Article 202 to 214
On guardianship, conservatorship and custody of minors and incapacitated persons
The custody and protection of the person and property, or only of the person or the property of minors or incapacitated persons shall be performed, where applicable, by means of the following:
3. The judicial defender.
Guardianship duties constitute an obligation, shall be exercised for the benefit of the ward and shall be subject to the supervision of the judicial authority.
The Judge, ex officio or at the request of any interested party, may also decree the measures and provisions provided in article 158 of this Code in all cases of guardianship or custody, de facto or pursuant to the law, of minors and incapable persons, to the extent that the latters’ interest should require it.
One may only be excused from accepting guardianship positions in the cases provided in the Law.
Court resolutions relating to guardianship and conservatorship positions must be registered with the Civil Registry.
Such resolutions shall not be enforceable against third parties until the relevant entries have been registered.
Registration of the resolutions mentioned in the preceding article shall be made pursuant to the notice served by the judicial authority forthwith to the Officer in charge of the Civil Registry.
A person who, in the exercise of a guardianship duty, should suffer any damages without fault on his part shall be entitled to be compensated for such damages with charge to the property of the ward, if he should be unable to obtain compensation otherwise.
Persons exercising any guardianship positions are forbidden from:
1. Receiving gifts from the ward or his successors, until final approval of his management.
2. Representing the ward when acting in his own name or on behalf of a third party in the transaction, there being
a conflict of interest.
3. Acquiring for valuable consideration property belonging to the ward or transferring property to the latter for valuable consideration.
SECTION ONE. ON GUARDIANSHIP IN GENERAL
The following persons shall be subject to guardianship:
1. Non-emancipated minors not subject to parental authority.
2. Incapacitated persons when the judgement has ruled it.
3. Persons subject to extended parental authority, upon termination thereof, save in the event that conservatorship
4. Minors who are in a situation of neglect.
Parents may, pursuant to a will or in a notarial public document, appoint a guardian, establish the guardian’ s supervision bodies, and designate the persons who are to propose them or order any provision relating to the person or property of their underage or incapacitated children.
Likewise, any person with sufficient civil capacity, expecting to be judicially incapacitated in the future may, in a public notarial document, adopt any disposition relating to his person or property, including the designation of a guardian.
The public documents mentioned in the present article shall be communicated ex officio by the authorising Notary Public to the Civil Registry, to be registered in the entry corresponding to the birth of the interested party.
In incapacitation proceedings, the judge shall request a certificate from the Civil Registry and, as the case may be, from the registry of last wills, in order to ascertain the existence of any dispositions mentioned in this article.
The provisions mentioned in the preceding article shall be binding on the Judge upon constituting the guardianship, unless the benefit of the minor or incapacitated person should require otherwise, in which case he shall issue a reasoned ruling.
In the event of the existence of testamentary dispositions or provisions set forth in a notarial public document executed by the father and by the mother, respectively, both shall apply jointly, to the extent that they should be compatible. If they are not, the Judge shall adopt, in a reasoned ruling, those which he considers most convenient for the ward.
Dispositions made in a will or notarial public document concerning guardianship shall be ineffective if, at the time of their adoption, the executor thereof should have been deprived of parental authority.
A person disposing of property as a gift in favour of a minor or incapacitated person may establish the rules governing the administration thereof and designate the person or persons who are to exercise it. Duties not conferred upon the administrator shall correspond to the guardian.
If the Public Prosecutor or the competent Judge should become aware of any person in the territory of their jurisdiction who ought to be subject to guardianship, the former shall request and the latter shall rule, even ex officio, the constitution of the guardianship.
Relatives called to exercise guardianship and the person in whose custody the minor or incapacitated person should live shall be obliged to promote the constitution of the guardianship and, if they should fail to do so, they shall be joint and severally liable for any damages caused.
Any person may make the Public Prosecutor or the judicial authority aware of the fact which determines the necessity of the guardianship.
The Judge shall constitute the guardianship, after hearing the nearest relatives, any persons deemed convenient and, in any event, the ward, if he should have sufficient judgement, and always if he should be older than twelve.
Guardianship shall be exercised under the supervision of the Public Prosecutor, who shall act ex officio or at the request of any interested party.
He may require the guardian to inform him of the situation of the minor or incapacitated person and of the state of administration of the guardianship at any time.
The Judge may establish, in the resolution constituting the guardianship or in another subsequent resolution, any supervision and control measures deemed suitable for the benefit of the ward. Likewise, he may at any time require the tutor to inform him on the situation of the minor or incapacitated person and the state of administration of the guardianship.
SECTION TWO. ON DESIGNATION OF THE GUARDIANSHIP AND APPOINTMENT OF THE GUARDIAN
The following persons shall be preferred to appoint a guardian:
1. The person designated by the ward himself, in accordance with the second paragraph of article 223.
2. The spouse who lives with the ward.
3. The parents.
4. The person or persons designated by the latter in their testamentary dispositions.
5. The descendant, ascendant or sibling designated by the judge.
Exceptionally, the Judge, in a reasoned resolution, may alter the order of the preceding paragraph or dispense with all persons mentioned therein, if the benefit of the minor or incapacitated person should require it.
Integration in the family life of the guardian shall be deemed beneficial for the minor.
In the absence of the persons mentioned in the preceding article, the Judge shall designate as guardian the person he considers to be most suitable, as a result of his relations with the ward and for the benefit of the latter.
Guardianship shall be exercised by single guardian, except:
1. Where, as a result of special circumstances in the person of the ward or his property, it should be convenient to separate into different positions a guardian for his person and a guardian for his property, each of whom shall act independently within the scope of his competence, although decisions concerning both must be taken jointly.
2. Where guardianship corresponds to the father and mother, it shall be exercised by both jointly in an analogous
manner to parental authority.
3. If a person should be designated guardian of his sibling’s children and it should be considered convenient that
the spouse of the guardian should also exercise such guardianship.
4. Where the Judge should appoint as guardians the persons designated by the parents of the ward in a will or
notarial public document to exercise the guardianship jointly.
In the case of number 4 of the preceding article, if the testator should have expressly provided it, and, in the case of number 2, if the parents should request it, the Judge may, upon appointing the guardians, rule that they may exercise the powers inherent to the guardianship joint and severally.
In the absence of such kind of appointment, in all remaining cases and without prejudice to the provisions of numbers 1 and 2, the powers of the guardianship entrusted to several guardians must be exercised by them acting jointly, but any acts performed with the agreement of the largest number shall be valid. In the absence of such agreement, the Judge, after hearing the guardians and the ward if he should have sufficient judgement, shall rule, without further appeal, whatever he deems convenient. In the event that disagreements should be repeated and should seriously hinder the exercise of the guardianship, the Judge may reorganise the operation thereof and even appoint a new guardian.
Article 237 bis
If the guardians should have been granted powers to act jointly and any of them should incur in an incompatibility or conflict of interest in respect of any acts or contracts, these may be performed by the other guardian or, if there should be several, by the rest of them jointly.
In cases where, for any reason, any of the guardians should be removed, the guardianship shall subsist with the remaining guardians, unless otherwise expressly provided upon making the appointment.
The guardianship of neglected minors shall correspond by operation of Law to the entity mentioned in article 172.
Notwithstanding the foregoing, a guardian shall be appointed in accordance with the ordinary rules in the event of existence of persons who, as a result of their relations with the minor or other circumstances, may assume the guardianship for the benefit of the former.
The public entity entrusted with the guardianship of incapable persons in the respective territory when none of the persons provided in article 234 should be appointed guardian, shall assume by operation of law the guardianship of the incapable person when the latter should be in a situation of neglect. A de facto situation of neglect shall be deemed to exist as a result of the breach or of the impossible or inadequate exercise of the duties attributed in accordance with the laws, when such incapable persons are deprived of the necessary moral or material assistance.
If it should be necessary to designate a guardian for several siblings, the Judge shall try to appoint a single person.
All persons who are in full possession of their civil rights and who do not incur in any of the grounds for ineligibility set forth in the following articles may be guardians.
Likewise, not-for-profit legal entities whose purposes include the protection of minors and incapacitated persons may also be guardians.
The following persons may not be guardians:
1. Persons deprived or suspended from the exercise of parental authority or from the rights of providing custody
and education, in whole or in part, pursuant to a judicial resolution.
2. Persons who have been legally removed from a prior guardianship.
3. Persons sentenced to a term of imprisonment, while they are serving their sentence.
4. Persons sentenced for any crime which makes one justifiably suppose that they shall not perform the
The following persons may also not be guardians:
1. Persons who incur in absolute de facto impossibility.
2. Persons who have a manifest enmity with the minor or incapacitated person.
3. Persons of bad conduct or those with no known way of making a living.
- Persons with a major conflict of interest with the minor or incapacitated person, who are currently in litigation against him or in an action concerning civil status or title to property, or those who should owe him considerable sums.
- Bankrupt persons who have not been discharged, save in the event that the guardianship should only be over
the ward’s person.
Likewise, persons expressly excluded by the father or the mother in their testamentary dispositions or those provided in a notarial document may also not be guardians, unless the Judge, in a motivated resolution, should rule otherwise for the benefit of the minor or the incapacitated person.
The grounds for ineligibility contemplated in articles 243.4 and 244.4 shall not apply to guardians designated pursuant to the testamentary dispositions of the parents when the latter should have been aware of them at the time of making the designation, unless the Judge, in a reasoned resolution, should rule otherwise for the benefit of the minor or the incapacitated person.
Persons who, after their designation, should incur in a legal ground for ineligibility, or should conduct themselves ill in the exercise of the guardianship, by breaching the duties inherent to their position or notorious ineptitude in the exercise thereof, or when serious and ongoing problems should arise in their life together with the ward, shall be removed from the guardianship.
The Judge, ex officio or at the request of the Public Prosecutor, of the ward or of another interested person, shall rule the removal of the guardian, after hearing the latter if, being summoned, he should appear in court. Likewise, the ward shall be heard if he should have sufficient judgement.
During the processing of the removal proceedings, the Judge may suspend the guardian from his duties and appoint a judicial defender for the ward.
After the judicial declaration of removal, a new guardian shall be appointed as provided in this Code.
The performance of guardianship duties may be excused when, for reasons of age, illness, personal or professional occupations, as a result of the absence of any kind of tie between the guardian and the ward or for any other reason, the exercise of the position should be exceedingly burdensome.
Legal entities may be excused where they lack sufficient resources for the proper performance of the guardianship.
The interested party who alleges an excuse must do so within fifteen days counting from the date on which he became aware of the appointment.
The guardian may be excused from continuing to exercise the guardianship, provided that there should be a person meeting similar conditions to replace him, when, during the exercise thereof, any of the excuses contemplated in article 251 should arise.
The provisions of the preceding article shall not apply to guardianship entrusted to legal entities.
If the excuse should arise subsequently, it may be alleged at any time.
While the resolution relating to the excuse is pending, the person who has alleged it shall be obliged to exercise his duties.
If he should fail to do so, the Judge shall appoint a defender to replace him, and the replaced guardian shall be liable for any expenses caused by the excuse proceedings if the excuse should be rejected.
The guardian designated pursuant to a will who should be excused from the guardianship at the time of his appointment shall lose any property left by the testator in consideration of the appointment.
Upon admission of the excuse, a new guardian shall be appointed.
SECTION THREE. ON THE EXERCISE OF THE GUARDIANSHIP
The judicial authority shall vest the appointed guardian in his duties.
The Judge may require the guardian to provide a bond securing the performance of his obligations and shall determine the form and amount thereof.
Notwithstanding the foregoing, the public entity that undertakes the guardianship of a minor by operation of law or performs such guardianship as a result of a judicial resolution shall not be required to provide a bond.
The Judge may also, at any time and for a just cause, render ineffective or amend in whole or in part any security provided.
The guardian shall be obliged to make an inventory of the property of the ward within sixty days, counting from the date on which he should have taken possession of his duties.
The judicial authority may extend this period in a reasoned resolution if there are grounds to do so.
The inventory shall be made in court with the intervention of the Public Prosecutor, summoning any persons which the Judge deems convenient.
Any money, jewellery, precious objects and securities or documents which, in the opinion of the judicial authority, should not remain in the guardian’s possession, shall be consigned in an establishment destined for such purposes.
Any expenses resulting from the foregoing measures shall be borne by the ward’s property.
The guardian who does not include in the inventory any credits held against the ward shall be deemed to waive his right thereto.
The guardian is the representative of the minor or incapacitated person, save for such acts which the latter may perform by himself, pursuant to the express provision of the Law or of the incapacitation judgement.
Guardians shall exercise their position in accordance with the personality of their wards, respecting their physical and psychological integrity.
When it should be necessary they may request the assistance of the authority for the exercise of their guardianship.
The guardian shall be obliged to watch over his ward and, in particular:
- To provide him with support.
- To educate the minor and provide him with a comprehensive upbringing.
- To promote the ward’s acquisition or recovery of civil capacity, and his insertion into society.
- To inform me Judge on an annual basis on the minor’s or incapacitated person’s situation and to render accounts
of his administration on an annual basis.
The single guardian and, as the case may be, the guardian of the ward’s property, is the legal administrator of the patrimony of the ward and is obliged to exercise such administration with the diligence of an orderly paterfamilias.
The guardian shall require judicial authorisation:
- To confine the ward in a mental health or special education or training establishment.
- To dispose of or encumber real estate properties, commercial or industrial undertakings, precious objects and securities belonging to minors or incapacitated persons, or to enter into contracts or perform acts which are acts of disposal and are capable of registration. The sale of preferred subscription rights relating to shares shall be excepted from the above.
- To waive rights, and to settle or submit to arbitration any matters in which the ward should have an interest.
- To accept any inheritance without the benefit of inventory, or to reject the inheritance or liberalities.
- To make extraordinary expenses in property.
- To file a claim in the name of the ward, save for urgent matters or those involving a small amount.
- To lease property for a period exceeding six years.
- To lend and borrow money.
- To dispose as a gift of property or rights belonging to the ward.
- To assign to third parties any credits held by the ward against him, or to acquire for valuable consideration any
credits against the ward held by third parties.
Partition of the estate or the division of common property performed by the guardian shall not require judicial authorisation, but, once practised, shall require judicial approval.
Before authorising or approving any of the acts included in the two preceding articles, the Judge shall hear the Public Prosecutor and the ward, if he should be older than twelve or if the Judge should deem it convenient, and shall commission any reports requested or any he deems suitable.
The guardian shall be entitled to remuneration, provided that the assets of the ward should allow it. The Judge shall be in charge of setting the amount thereof and the manner of perceiving it, for which he shall take into account the
work to be performed and the value and returns of the property, to the extent possible attempting to achieve an amount of the remuneration not lower than 4% or higher than 20% of the net yield of the property.
Only parents, in their testamentary dispositions, may establish that the guardian is entitled to appropriate the fruits of the ward’s property in exchange for providing support, save if the Judge, in a duly reasoned resolution, should rule otherwise.
SECTION FOUR. ON TERMINATION OF THE GUARDIANSHIPAND FINAL RENDERING OF ACCOUNTS
Guardianship shall terminate:
- When the minor turns eighteen, unless he should have been judicially incapacitated previously.
- By adoption of the underage ward.
- By the death of the ward.
- By the granting of the benefit of legal age to the minor.
Guardianship shall also terminate:
- If it should have arisen as a result of deprivation or suspension parental authority, when the holder of such
authority should recover it.
- Upon issuance of the judicial resolution ending the incapacitation or amending the incapacitation judgement,
replacing the guardianship by a conservatorship.
The guardian shall continue in the exercise of his position if the underage ward should have been incapacitated before coming of age, in accordance with the provisions of the incapacitation judgement.
Upon ceasing in his duties, the guardian must render general justified accounts of his administration to the judicial authority, within three months, which period may be extended by any period required if there is a just cause for it.
The action to require the rendering of accounts shall be subject to statute of limitations after five years from expiration of the period to perform it.
Before issuing its resolution approving the accounts, the Judge shall hear the new guardian or, as the case may be the conservator or the judicial defender, and the ward or his heirs.
Necessary expenses pertaining to the rendering of accounts shall be borne by the ward.
The balance of the general account shall accrue legal interest, in favour or against the guardian.
If the balance should be in favour of the guardian, it shall accrue legal interest from the date on which payment should be demanded of the ward, after delivering his property to him.
If the balance should be against the guardian, it shall accrue legal interest as from the approval of the account.
Judicial approval shall not prevent the exercise of any legal remedies to which the guardian and the ward or their successors may be reciprocally entitled as a result of the guardianship.
SECTION ONE. GENERAL PROVISIONS
The following persons shall be subject to conservatorship:
- Emancipated minors whose parents should have died or become unable to exercise the assistance provided in
- Persons who have obtained the benefit of legal age.
- Persons declared to be prodigal.
Likewise a conservator shall be appointed for persons whose incapacitation judgement or, as the case may be, judicial resolution amending the former, should place them under this form of protection, based on their degree of discernment.
In the cases mentioned in article 286, conservatorship shall have no other purpose than the participation of the conservator in the act which the minors or prodigal persons cannot perform by themselves.
Conservatorship over incapacitated persons shall have as its purpose the conservator’s assisting in those acts expressly provided in the judgement which established it.
If the incapacitation judgement should not have specified those acts in which the intervention of the conservator should be necessary, such intervention shall be deemed to extend to the same acts for which guardians require judicial authorisation, according to this Code.
The rules governing appointment, ineligibility, excuse and removal applicable to guardians shall apply to conservators.
Bankrupt persons who have not been discharged may not be conservators.
If the person subject to conservatorship should have previously been subject to guardianship, the same person who was his guardian shall hold the position of conservator, unless otherwise provided by the Judge.
Legal acts performed without the intervention of the conservator, where the latter is required, shall be voidable at the request of the conservator himself or of the ward, in accordance with articles 1301 et seq. of this Code.
SECTION TWO. ON CONSERVATORSHIP OVER PRODIGAL PERSONS
Article 294 -296
The acts of the person declared to be prodigal performed prior to the claim requesting declaration of prodigality may not be challenged on these grounds.
On the judicial defender
The judicial defender shall be appointed to represent and protect the interests of persons who are in any of the following cases:
- In the event of a conflict of interest on any matter between the minors or incapacitated persons and their legal representatives or the conservator. In the event of joint guardianship exercised by both parents, when a conflict of interest should exist only with one of them, the other, by operation of law and without the need for a special appointment, shall be entitled to represent and protect the minor or incapacitated person.
- In the event that, for any reason, the guardian or conservator should fail to perform his duties, until termination
of the cause of such failure or designation of another person for the position.
- In all other cases provided in this Code.
Article 299 bis
From the time of the awareness that a person ought to be subject to guardianship and until the issuance of the judicial resolution ending the proceedings, the Public Prosecutor shall assume his representation and defence. In such case, where, as well as the care of his person, such person’s property must also be administered, the Judge may designate an administrator thereof, who must render account of his management upon termination thereof.
The Judge shall, in voluntary jurisdiction proceedings, ex officio or at the request of the Public Prosecutor, of the minor himself or of any person capable of appearing at court, shall appoint as defender whoever he deems most suitable for the position.
The same grounds for ineligibility, excuses and causes for removal applicable to guardians and conservators shall apply to the defender.
The judicial defender shall have the powers granted by the Judge, to whom he must render account of his management upon termination thereof.
On de facto custody
Without prejudice to the provisions of articles 203 and 228, when the judicial authority should become aware of the existence of a de facto carer, it may request him to inform on the situation of the person and property of the minor or the allegedly incapable person and his actions in connection therewith, and may also set any control and supervision measures deemed suitable.
Acts performed by the de facto carer in the interest of the minor or allegedly incapable person may not be challenged if they are to his benefit.
The provisions of article 220 concerning the guardian shall apply to the de facto carer.
On legal age and emancipation
Emancipation takes place:
1. By coming of age.
2. By marriage of the minor.
3. By concession granted by persons exercising parental authority.
4. By concession granted by the court.
Legal age begins upon turning eighteen.
The date of birth shall be included in full for the calculation of legal age.
Marriage shall result in emancipation by operation of law.
Emancipation by concession granted by the persons exercising parental authority shall require that the minor has turned sixteen and consents to the emancipation. Such emancipation shall be executed pursuant to public deed, or by appearing before the Judge in charge of the Registry.
The granting of emancipation must be registered in the Civil Registry, and until then shall not be effective vis-à-vis third parties.
Emancipation may not be revoked once granted.
A child older than sixteen who should live independently of his parents with their consent shall be deemed emancipated for all purposes. The parents may revoke this consent.
The Judge may grant the emancipation of children older than sixteen if they should request it, after hearing the parents:
1. When the person exercising parental authority should marry or live together in marital fashion with a person
other than the other parent.
2. When the parents should be separated.
3. In the event of any cause which seriously hinders the exercise of parental authority.
The Judge, after receiving the Public Prosecutor’s report, may also grant the benefit of legal age to the person subject to guardianship who is older than sixteen and who should request it.
A person who is of legal age has capacity for all acts of civil life, save for the exceptions set forth in this Code for special cases.
Emancipation qualifies the minor to govern his person and property as if he were of legal age, but until he comes of age the emancipated minor may not borrow money, encumber or dispose of immovable properties and commercial or industrial undertakings or objects of extraordinary value without his parents’ consent and, in the absence of both, without his conservator’s consent.
The emancipated minor may appear in court by himself.
The provisions of this article shall also apply to the minor who has judicially obtained the benefit of legal age.
For the married minor to dispose of or encumber immovable properties, commercial or industrial undertakings or objects of extraordinary value which are common to both spouses, the consent of both spouses shall suffice if the other spouse should be of legal age; if the other spouse should also be underage, the consent of the parents or conservators of both shall also be required.
On the Registry of Civil Status
Acts relating to the civil status of persons shall be registered in the Registry destined for such purposes.
The Registry of Civil Status shall comprise all registrations or entries of births, marriages, emancipations, recognitions and legalisations, deaths, naturalisations and civil residence, and shall be entrusted to the municipal Judges or other officers of the civil jurisdiction in Spain, and consular or diplomatic Agents abroad.
The Registry records shall constitute proof of civil status, which may only be supported by other evidence in the event that the former should never have existed, or if the Registry books should have disappeared, or if they should be challenged before the Courts.
It shall not be necessary to physically present the newborn before the officer in charge of the Registry to register the birth, a statement by the person obliged to register the birth being sufficient. This statement shall include all circumstances required by the law; and shall be signed by the author, or two witnesses at his request, if he should be unable to sign.
In canonical marriages, the spouses shall be obliged to provide to the Public officer attending the wedding all necessary information for the registration thereof with the Civil Registry. Data relating to banns, impediments and dispensation thereof shall be excepted therefrom, and shall not be included in the entry.
Naturalisations shall have no legal effect whatsoever until registration thereof with the Registry, whatever the supporting evidence and the date on which they should have been granted.
Municipal and first instance Judges, as the case may be, may punish any infringements of the provisions relating to the Civil Registry which do not constitute a crime or misdemeanour with a 20 to 100 peseta fine.
Law of June 17, 1870 shall continue to apply to the extent that it has not been amended by the preceding articles.
On property, ownership and its modifications
On the classification of property
All things which are or may be subject to appropriation are considered movable or immovable property.
On immovable property
The following are immovable property:
1. Land, buildings, roads and constructions of all kinds which are joined to the ground.
2. Trees and plants and pending fruits, while they are joined to the earth or form integral part of an immovable
3. Anything which is joined to an immovable property on a fixed basis, so that it cannot be separated therefrom
without breaking the material or impairing the object.
4. Statues, reliefs, paintings or other objects of use or ornamentation, placed on buildings or on land by the owner of the immovable property, in such a way that reveals the purpose of uniting them to the land on a permanent basis.
5. Machines, vessels, instruments or utensils destined by the owner of the property to the industry or undertaking performed in the building or landed property, and which are directly destined to satisfy the needs of the undertaking itself.
6. Animal farms, dovecotes, beehives, fish tanks or analogous hatcheries, when the owner has placed or preserved
them for the purpose of keeping them joined to the property or forming part thereof on a permanent basis.
7. Fertilisers destined for the cultivation of landed property, located in the land where it is to be used.
8. Mines, quarries and dumps, while their matter remains joined to the source, and flowing or stagnant waters.
9. Docks and constructions which, even if they float, are destined, as a result of their purpose and conditions, to
remain in a fixed point of the river, lake or coast.
10. Administrative concessions to perform public works, and easements and other rights in rem pertaining to
On movable property
Property capable of appropriation not included in the preceding chapter and, generally, all property which may be transported from one point to another without impairment of the immovable object to which it is joined shall be deemed to movable property.
Income or pensions, whether life or hereditary annuities, attached to a person or family, provided that they do not encumber with a real lien an immovable object, positions subject to disposal, contracts relating to public services and certificates and securities representing mortgage loans shall also be considered movable property.
Movable property shall be fungible or non-fungible.
Property which cannot be properly used according to its nature without being consumed shall belong to the first species; other property shall belong to the second species.
On property based on the persons to which it belongs
Property is either of public domain or private property.
The following property is of public domain:
1. Property destined for public use, such as roads, canals, rivers, torrents, ports and bridges built by the State,
riverbanks, shores, bays and other analogous property.
2. Property exclusively owned by the State, which is not for public use, and which is destined to any public services or to the fostering of national wealth, such as city walls, fortresses and other civil works for the defence of the territory, and mines, until the granting of a concession thereon.
All other property belonging to the State in which the circumstances expressed in the preceding article do not concur shall be deemed to private property.
When property of public domain ceases to be destined to general use or to the requirements of the defence of the territory, it shall become part of the property owned by the State.
Property belonging to the Royal Patrimony shall be governed by a specific statute, and, for all matters not provided therein, by the general provisions governing private property set forth in this Code.
Property belonging to provinces and towns is divided into property for public use and patrimonial property.
In provinces and villages, provincial and neighbourhood parks, squares, streets, public fountains and waters, promenades and general service public works paid by the same villages or provinces shall be deemed property for public use.
All remaining property held by one or the other shall be patrimonial property and shall be governed by the provisions of this Code, save as otherwise provided in specific statutes.
Besides the patrimonial property of the State, the Province and the Municipality, property individually or jointly belonging to individuals shall be private property.
PROVISIONS COMMON TO THE THREE PRECEDING CHAPTERS
When, in a provision of law, or pursuant to an individual statement, the expression immovable property or things, or movable property or things should be used, the property listed in Chapter 1 and in Chapter 2, respectively, shall be deemed comprised therein.
When only the word “movables” should be used, money, credits, commercial paper, securities, jewellery, scientific or artistic collections, books, medals, weapons, clothing, horses or carriages and their harness, grain, stock and merchandise, or other things the principal destination whereof is not to furnish or adorn rooms shall not be deemed comprised therein, save in the event that the context of the law or individual provision clearly provides otherwise.
Where in any sale, legacy, gift or other disposition in which there is a reference to movable or immovable property, possession or ownership thereof should be transferred with everything located therein, any cash, securities, credits and shares whose documents are located within the transferred property shall not be deemed comprised therein, unless the intention to extend the transfer to such securities and rights should be clearly expressed.
On ownership in general
Ownership is the right to enjoy and dispose of a thing, without greater limitations than those set forth in the laws.
The owner shall have an action against the holder and the possessor of the property to claim it.
Nobody may be deprived of his property save by the competent Authority and for on justified grounds of public utility, always after the relevant compensation.
In the absence of this requirement, Judges shall protect and, as the case may be, restore such person’s possessions.
The owner of a plot of land is the owner of the surface and of what is underneath it, and may perform therein any building works, plantations and excavations which may be convenient, save for any easements, and subject to the provisions of the laws relating to mining and waters and police regulations.
Hidden treasure shall belong to the owner of the land in which it is found.
Notwithstanding the foregoing, when the discovery should be made by chance in another’s property, or in State property, half shall correspond to the discoverer.
If the objects discovered should be of interest to science or art, the State may acquire them for their fair value, which shall be distributed in accordance with the above provisions.
For the purposes provided in the law, treasure shall be deemed to mean the hidden and ignored deposit of money, jewellery or other precious objects, whose legitimate ownership is unknown.
On the right of accession
Ownership of the property shall, pursuant to the right of accession, entitle the owner to everything produced thereby, or naturally or artificially joined or incorporated thereto.
SECTION ONE. ON THE RIGHT OF ACCESSION IN RESPECT OF THE PRODUCTS OF THE PROPERTY
The following shall belong to the owner:
1. Natural fruits.
2. Industrial fruits.
3. Civil fruits.
Natural fruits are the spontaneous produce of the land, and the brood and other products of animals.
Industrial fruits are those produced by plots of land of any kind as a result of cultivation or work.
Civil fruits are the rent on buildings, the lease on land and the amount of perpetual or life annuities or other analogous income.
The person who receives the fruits has the obligation of paying the expenses made by a third party for their production, collection and preservation.
Only fruits which are manifest or born shall be deemed natural or industrial fruits.
As relates to animals, it will suffice if they are in their mother’s womb, even if they are not yet born.
SECTION TWO. ON THE RIGHT OF ACCESSION IN RESPECT OF IMMOVABLE PROPERTY
Anything built, planted or sown on another’s plot of land and any improvements or repairs made therein shall belong to the owner thereof, subject to the provisions of the following articles.
Any works, sowings and plantations shall be presumed made by the owner at his expense, unless there is evidence to the contrary.
The owner of the land who performs therein, by himself or by another, plantations, constructions or works with another’s materials, must pay the value thereof; and, if he should have acted in bad faith, he shall also be obliged to compensate any damages. The owner of the materials shall be entitled to remove them only if he can do so without impairment of the construction, or without destroying the plantations, constructions or works performed.
The owner of the land on which another should build, sow or plant in good faith shall be entitled to appropriate the works, sowings or plantations, after paying the compensation set forth in articles 453 and 454, or to make the person who manufactured or planted it pay the price of the land, and the person who sowed it, the corresponding rent.
The person who builds, plants or sows in bad faith on another’s land shall lose what he has built, planted or sown without being entitled to compensation.
The owner of the land on which another has built, planted or sown in bad faith may request the demolition of the works or the uprooting of the plantation and sowing, returning things to their original condition at the expense of the person who built, planted or sowed.
In the event of bad faith not only on the part of the person who builds, sows or plants on another’s land, but also on the part of the owner of the latter, the rights of one and the other shall be the same as if both had acted in good faith.
The owner shall be deemed to have acted in bad faith whenever the deed should have been performed in his full sight, with his awareness and forbearance, and without opposition.
If the materials, plants or seeds should belong to a third party who has not acted in bad faith, the owner of the land must be liable for their value on a subsidiary basis, only in the event that the person who used them does not have sufficient property to pay.
This provision shall not apply if the owner should exercise the right provided in article 363.
The accretion gradually obtained by riverbanks as a result of the water currents shall belong to the owners of the land and properties adjoining such banks.
The owners of landed properties adjoining ponds or lagoons do not acquire the land uncovered by the natural decrease of the waters, nor lose the land flooded by the waters in extraordinary rises.
Where the current of a river, stream or torrent should segregate from the bank of a landed property a known portion of land and should transport it to another property, the owner of the property to which the segregated part belonged shall remain the owner thereof.
Trees which are uprooted and transported by the current of the waters shall belong to the owner of the land to which they are taken, if the former owners should not claim them within one month. If they should claim them, they must pay any expenses incurred in gathering them in or putting them in a safe place.
Riverbeds which are abandoned as a result of natural variations in the course of the waters shall belong to the owners of the lands of the riverbanks, in their respective lengths. If the abandoned riverbeds should have separated plots of land belonging to different owners, the new dividing line shall be equidistant from such properties.
Islands formed in the seas adjacent to the coasts of Spain and in navigable and floatable rivers belong to the State.
Where a navigable and floatable river should vary its direction naturally, and open a new course in a private landed property, this course shall become part of the public domain. The owner of the property shall recover it when the waters should leave it dry again, either naturally or as a result of any legally authorised works for such purposes.
Islands which are formed in rivers by successive accumulation of debris belong to the owners of the nearest banks or shores, or to those of both banks if the island should be in the middle of the river, and the island shall then be divided longitudinally in half. If a single island thus formed should be further away from one bank than from the other, the owner of the nearest bank shall own all of it.
When the river current should divide it into two branches, leaving a plot of land or part of it isolated, its owner shall remain owner thereof. He shall likewise keep it if a portion of land is separated from the property by the current.
SECTION THREE. ON THE RIGHT OF ACCESSION IN RESPECT OF MOVABLE PROPERTY
When two movable things belonging to different owners are joined in such a manner that they form a single thing, without bad faith, the owner of the principal thing shall acquire the accessory thing, compensating the former owner for its value.
Between two things which have been incorporated together, the thing to which the other has been joined as an adornment, or for its use or perfection shall be deemed the principal thing.
If, pursuant to the rule of the preceding article, it should be impossible to determine which of two things incorporated together is the principal thing, the thing of greater value shall be deemed principal, and, between two things of equal value, the one with the greater volume.
In paintings and sculpture, in writings, printed documents, engravings and lithographs, the table, the metal, the stone, the canvas, the paper or the parchment shall be deemed accessory.
When the things joined together can be separated without impairment, the respective owners may demand their separation.
However, when the thing joined for the use, embellishment or perfection of another is much more precious than the principal thing, the owner of the former may demand separation thereof, even if the thing to which it was incorporated suffers any impairment.
When the owner of the accessory things has incorporated it in bad faith, he shall lose the incorporated thing and shall be obliged to compensate the owner of the principal thing for any damages suffered.
It the owner of the principal thing should have acted in bad faith, the owner of the accessory thing shall be entitled to choose between the former paying its value or the separation of the thing belonging to him, even if it should be necessary to destroy the principal thing; in both cases, compensation of damages shall also apply.
If either owner should have performed the incorporation in the other’s sight, with his awareness and forbearance, and without opposition, their respective rights shall be determined as if they had acted in good faith.
Whenever the owner of the materials employed without his consent should be entitled to compensation, he may request that this consist of delivery of a thing equal to the one employed in species and value, and all circumstances thereof, or the price thereof, according to expert appraisal.
If, at the will of their owners, two things of the same or different species should be mixed, or if the mix should take place by chance, and in this last case the things should not be capable of separation without impairment, each owner shall acquire a proportional right to the part which corresponds to it based on the value of the things mixed or commingled.
If, at the will of one owner only, but in good faith, two things of equal or different species should be mixed or commingled, the rights of the owners shall be determined according to the provisions of the preceding article.
If the person who performed the mix or commingling acted in bad faith, he shall lose the thing belonging to him which was mixed or commingled, and shall also be obliged to compensate any damages caused to the owner of the thing with which he performed the mix.
The person who, acting in good faith, has used another’s materials in whole or in part to create a new work, shall be entitled to appropriate the work, compensating the owner of the materials for their value.
If the materials should be more precious or of greater value than the work for which it was used, the owner of the former may, at his discretion, keep the new species, after compensating the value of the work, or request compensation for the materials.
If bad faith should have intervened in the creation of a new species, the owner of the materials shall be entitled to keep the work without paying the author anything, or to request the latter to compensate him for the value of the materials and any damages caused.
On survey and marking of boundaries
Any owner shall be entitled to mark the boundaries of his property, summoning the owners of the adjoining plots.
Holders of rights in rem shall have the same right.
The marking of boundaries shall be performed in accordance with the deeds held by each owner and, in the absence of sufficient title, as results from the possession of the adjoining owners.
If the deeds should fail to determine the limits or area belonged to each owner, and the matter should not be capable of resolution in reference to possession or by another means of evidence, the marking of boundaries shall be performed by distributing in equal parts the land subject to dispute.
If the deeds of the adjoining owners should indicate a greater or lower area than that which comprises the whole of the land, the excess or shortfall shall be distributed proportionally.
On the right to enclose rural properties
Any owner may enclose or fence his landed properties by means of walls, ditches, live or dead hedges, or in any other way, without prejudice to any easements constituted thereon.
On ruinous buildings and trees which threaten to fall down
If a building, wall, column or any other construction should threaten to collapse, its owner shall be obliged to undertake its demolition or perform the necessary works to prevent its collapse.
If the owner of the ruinous building should not perform this, the Authorities may have it demolished at his expense.
Where a sturdy tree should threaten to fall down in such a manner that it may cause damage to another’s landed property or to any passersby on a public or private road, the owner of the tree shall be obliged to uproot and remove it; and, if he should fail to do so, it shall be done at his expense by order of the Authorities.
In the case of the two preceding articles, if the building or tree should fall down, the provisions of articles 1907 and 1908 shall apply.
On joint ownership
There is joint ownership where ownership of a thing or right belongs pro indiviso to several persons.
In the absence of a contract or of specific regulations, joint ownership shall be governed by the provisions of this title.
The participants’ share in both benefits and charges shall be proportional to their respective interest.
Portions corresponding to the participants of the community shall be presumed equal, unless evidence to the contrary is provided.
Each participant may use the things owned in common, provided that he does so in accordance with their destination and in a manner which does not damage the interests of the community, or prevent co-participants from using them according to their right.
Every co-owner shall be entitled to oblige the participants to contribute to preservation expenses of the common thing or right. Only the person who renounces his part of the property shall be exempt from this obligation.
The different flats or premises in a building, or the parts thereof capable of independent use, as a result of having their own exit to communal elements of the former or to the public road, may be subject to separate ownership, which shall carry an inherent co-ownership right over the communal elements of the building, which are all those necessary for its suitable use and enjoyment, such as the land, surface, foundations and roofs; structural elements, among them pillars, beams, frameworks and load-bearing walls; facades, with the external adornments of terraces, balconies and windows, including their look or configuration, the closing elements which form them and their external coatings; the foyer, stairs, caretaker’s cubicles, corridors, passageways, walls, pits, patios, wells and the spaces destined for lift shafts, tanks, meters, telephone or other communal services or facilities, even those which should be of exclusive use; lifts and facilities, conduits and pipes for drainage purposes and for the supply of water, gas or electricity, even for solar energy; and for hot water, heating, air conditioning, ventilation or smoke extraction; for fire detection and prevention purposes; for entry-phones and other security facilities of the buildings, and shared aerials and other facilities for audiovisual or telecommunications services, until they reach private spaces; easements and any other material or legal elements which are indivisible as a result of their nature or destination.
The parts which are co-owned shall in no event to be capable of division, and may only be disposed of, encumbered or attached together with the exclusively owned specific portion to which they are inseparably attached.
In the event of disposal of a flat or premises, the owners of the rest shall not be entitled to rights of pre-emption or first refusal.
This form of ownership shall be governed by specific statutory provisions and, to the extent that they should permit, by the will of the interested parties.
None of the co-owners may make alterations in the thing owned in common without the others’ consent, even though advantages for all of them should be had as a result thereof.
The agreement of the majority of the participants shall be required for the administration and better enjoyment of the thing owned in common.
There shall be no majority unless the resolution is passed by participants representing the majority of the interests constituting the subject matter of the joint ownership.
In the absence of a majority, or if the resolution passed thereby should be seriously detrimental to the persons interested in the thing owned in common, the Judge shall provide what he deems suitable, at the request of any party, even by appointing an Administrator.
When a part of the thing should belong exclusively to a participant or to some of them, and another should be owned in common, the provisions of the preceding paragraph shall only apply to the latter.
Each co-owner shall have full ownership of his part and of the fruits and benefits corresponding to him, and may, as a result thereof, dispose of it, assign it or mortgage it and even delegate its use to another, save if they should be personal rights.
However, the effect of the disposal or the mortgage in relation with the co-owners shall be limited to the portion awarded thereto in the division upon termination of the joint ownership.
No co-owner shall be obliged to remain in the joint ownership. Each of them may request any time the division of the thing owned in common.
Notwithstanding the foregoing, the covenant to preserve the thing undivided for a specific period, which shall not exceed ten years, shall be valid. This period may be extended by a new covenant.
Notwithstanding the provisions of the preceding article, the co-owners may not request the division of the thing owned in common when, if they should do so, it should become useless for its intended destination.
If it should be a building whose characteristics should allow it, at the request of any of the co-owners, the division may take place by awarding separate flats or premises, with their attached communal elements, in the manner provided in article 396.
The division of the thing owned in common may be performed by the interested parties, or by arbitrators or amicable compounders appointed at the will of the participants.
If it should be performed by arbitrators or amicable compounders, they must create portions which are proportional to the rights of each of them, avoiding to the extent possible any supplements in cash.
Creditors or assignees of the participants may attend the division of the thing owned in common and challenge any division performed without their attendance. However, they may not challenge the division which has already been completed, save in the event of fraud, or in the event that it should have taken place notwithstanding their formally filed opposition to prevent it, and always excepting the rights of the debtor or of the assignor to uphold its validity.
Where the thing should be in essence indivisible, and the co-owners should not agree on its being awarded to one of them, compensating the rest, it shall be sold, and its price shall be distributed among them.
The division of the thing owned in common shall not prejudice a third party, who shall retain any mortgage rights, easements or other rights in rem belonging to him prior to the division. Personal rights belonging to a third party against the joint ownership shall likewise remain in force notwithstanding the division.