From Law 6/2021 of the Civil Registry, Spanish notaries instruct the records of the marriage before the celebration of the marriage, while at the same time they have the power to participate in the celebration of the marriage. The law on notaries establishes that it will be in the form of a certificate and that the notary will verify compliance with the legal capacity requirements of both parties, the absence of obstacles or their refusal, or any kind of obstacle to the marriage. A competent notary will be the one who has a place of residence at the place of residence of any of them. The system developed by the General Council of Notaries and approved by the DGSJYFP is the system that operates among local notaries. Marriage can be performed in front of a selected notary at any point in the national territory. In any case, the request, processing and authorization of the act will be in accordance with the provisions of Article 58 of Law 20/2011, of the Civil Registry and, in what is not provided, of the Law on Notaries.
Marriage between international couples in Spain is usually considered from the point of view of avoiding marriages of convenience, a goal for which the preserved interview conducted by a notary is of particular interest. However, as the question is relevant, it is not the only aspect to be considered, since in the normal situation of international couples they exercise their right to marry without the shadow of illegality. The complexity of the documentary forms related to the formation of a marriage act (canonical or non-Catholic religious; before the person in charge of the Civil Registry – including the consuls – and before a notary) and its different regime depending on whether it is contracted in Spain or abroad, makes it difficult the understanding of the requirements that must be controlled by the notary in its execution.
Briefly reviewed, we find several pertinent issues. First of all, the notarial processing must be completed, given the impossibility of coordinating the notarial act with the consular act, in case a party to the contract is not located on national territory. In such a case, the notary cannot notify the relevant consul for the integration of the proceedings, as established by the DGSJYF, which prevents the notary from formulating the file and its full attribution to the person in charge of the Civil Registry. On the other hand, in the course of the formation of the file between international spouses, there are two different topics. The first relates to the documentary evidence and the second to the accreditation of the quality of the non-Hispanic spouse. In both cases, it is necessary to distinguish between spouses who are citizens of a member state of the European Union or of a third country.
For European citizens today there are several procedures in relation to one and another subject. Previous documents such as a birth certificate or a criminal record (necessary to check if there are obstacles related to blood crimes in the family – such as marital death, usually applicable as an obstacle) can be circulated through the unified multilingual forms in Regulation 2016/1191. in all languages or in those specifically communicated to the Commission, in untranslated templates submitted to the IMI (Internal Market Information) system, in case of doubt, the Central Authority will check. In Spain, DG Legal certainty and public trust. This simplification is not mandatory for the contracting parties, as they may continue to prefer the apostille regulated in the Hague Convention of 5 October 1961. In general, this is due to the lack of knowledge on the part of civil registry authorities in Europe about the application of this regulation. In addition, one cannot forget the application of Convention CIEC number 16, or Vienna, on multilingual birth certificates, which among the participating countries avoids the apostille.
Continuation of third country certificates will be necessary in any case, an apostille or, if this is not the case, if the country is not a party to the Hague Convention, diplomatic legalization. But undoubtedly the essential element in the formation of the marriage file between international contracting parties is the accreditation of the marital capacity. Legal capacity according to Article 9.1 of the Civil Code, which remains unchanged after Law 26/2015, is governed by the personal law of the contracting party. That is, according to the law of their nationality. In order to reanalyze their accreditation, it is necessary to distinguish between citizens of Community origin and those who are part of the Munich Convention CIEC 20.
For non-Community citizens, Article 100 of the Civil Registry Act and, in addition, Article 168.4 of the Notary Regulations, which requires proof of law, if the notary does not know the original legislation, by means of ordinary evidence as described therein, will necessarily be resorted to (report of consul in Spain or notary public). The administrative or judicial certification issued in the country of origin must be added, duly apostilled and, where appropriate, translated, at the notary’s discretion.
For European citizens, there is the issue of the preferential application or not of Convention 20 CIEC (Munich), which requires the issuance of a standardized certificate among the participating countries, which is very difficult to comply with outside the consular authority (which assumes that the spouse lives outside his country). Article 19 of R. (EU) 2016/1191, to which all Member States except Denmark are parties, simplifies the issuance of a certificate by defining preferences for its application among Member States, without affecting its nature, under the same way, volunteer.
This duality of forms makes Professor Adroher Biesca reflect on the usefulness of the decision of notarial law, which links the different forms of accreditation, if he knew the content of personal law, to facilitate the lives of European citizens, the purpose of Union provisions, especially in matters of family right. Although they work in this area – vulnerable adults and parenting- The form of marriage and its requirements for celebration and capacity have not yet been addressed. Even less the approximation between the Civil Registry. Finally, the utility of the notarial deed as a certificate of marital capacity is indicated in certain marriages abroad in Article 58 of the ZRK.