Libro Cuarto Título I. Jurisdiccion voluntaria

Voluntary jurisdiction comprises all acts in which, by provision of the law or upon request of the interested parties, the intervention of the judge is required, without any issue having been raised or being raised between specific parties.

The information proceedings required by law for the performance of certain acts, such as the granting of judicial authorizations, rectification of entries, etc., and all those not specially regulated, shall be subject to the provisions of this Title, applying in addition whatever the respective laws particularly establish as a special requirement.

Applications relating to voluntary jurisdiction shall be made in writing before the judges of First Instance; and when a hearing of any person is necessary, such person shall be notified so that, within the third day, they respond to it.

The documents submitted and the justifications offered shall be received without need for citation.

The Public Prosecutor's Office shall be heard:

1º.When the application filed affects the public interest.

2º.When it relates to incapacitated or absent persons.

If any person having the right to do so opposes the petition, the matter shall be declared contentious, so that the parties may resort to the appropriate authority to assert their rights.

If the petition is made by a person having no right in the matter, the judge shall reject it on its own initiative.

The judge may vary or modify the orders issued, without being subject to the terms and forms established for contentious jurisdiction.

A declaration of interdiction lies on grounds of mental illness, congenital or acquired, provided that in the opinion of experts it is chronic and incurable, even though in such case it may have more or less complete remissions. It also lies on grounds of abuse of alcoholic beverages or narcotics, if the person exposes himself or herself or exposes his or her family to serious economic losses.

Congenital and severe deaf-mutism gives rise to a declaration of civil incapacity, provided that in the opinion of experts it is incorrigible or while the disabled person has not been rehabilitated to be capable of understanding and making himself or herself understood in a sufficient and satisfactory manner.

Congenital blindness or blindness acquired in childhood gives rise to a declaration of civil incapacity, while the blind person is not rehabilitated, until he or she is in a condition to take care of himself or herself.

The respective request may be made by persons having an interest or by the Public Prosecutor's Office.

The documents contributing to substantiate it shall be attached to the request and the pertinent declarations shall be offered. The judge shall cause the person whose incapacitation is requested to appear, if possible, or shall go to where such person is located, to examine such person personally. He shall also order that a medical examination be conducted by experts, one appointed by the judge and the other by the applicant and, in case of disagreement, recourse shall be had to a consultative body or a third party shall be appointed. If the tribunal finds sufficient grounds, it shall appoint a specific guardian to defend the alleged incapacitated person. If it deems it advisable, it shall order security measures for the property and shall appoint a provisional administrator-in-charge to receive it by inventory.

When the condition that gave rise to the request has been established, the judge shall issue the necessary provisions for the care and safety of the sick person.

In any case, the provisions mentioned in this article shall be carried out within a term of eight days.

The medical examination shall be carried out within such period as may be necessary, not exceeding thirty days. Upon expiration of this period, the result of the proceedings shall be placed in the case file and a record shall be drawn up, which the judge, the experts and the secretary shall sign.

During the said period, the judge may question or examine the patient as many times as he deems necessary.

The judge, following a prior hearing of the Public Prosecutor's Office, which in all cases shall be a party, shall decide whether or not the requested declaration is granted.

If the judge grants it, he shall designate the person who is to take charge of the incapacitated person and of his property, in accordance with the Civil Code, all provisional administration ceasing once compliance is given to what was decided.

The declaration shall be published in the Official Gazette and shall be recorded on its own initiative in the Civil and Property Registries.

Any opposition brought against the requested declaration shall be processed in an ordinary trial, without prejudice to any applicable interim protective measures.

To rehabilitate a person declared incapacitated, the same proceedings prescribed in the preceding articles shall be carried out, but the medical opinion shall address the following points:

1.Effectiveness of the cure.

2.Prognosis regarding the possibility of relapses.

3.Whether the recovery has been complete or whether any incapacity will remain permanently and to what degree.

Upon request for the declaration of absence, the judge, with the intervention of the Public Prosecutor's Office, shall order the taking of evidence to establish the following:

1.The fact of the absence.

2.The circumstance that the absent person has no relatives, or agent with sufficient powers, nor a guardian in the case of being a minor or incapacitated person.

3.The time of the absence.

The application shall be accompanied by the documents that lead to proving the matters indicated in this article.

The judge shall appoint a judicial defender, who shall exclusively be in charge of the judicial representation of the presumed absentee; and shall issue the necessary orders to secure the property, appointing a depositary, who may be the same defender.

In the same decision, publication of the request in the Official Gazette and in another newspaper of greatest circulation shall be ordered, three times during one month, with the edicts to contain the account of the matter for which the declaration of absence has been requested, the summons to the presumed absentee, the call to those who consider themselves entitled to represent him, the date and the signature of the secretary of the Tribunal where the proceedings are being conducted.

If several persons should dispute the right to represent the absent person, the question shall be resolved in the form of an incident; and, upon the declaration of absence, the judge shall appoint the person who has the better right, in accordance with the provisions of the Civil Code. If there should be opposition to the declaration of absence, the matter shall be declared contentious and shall be substantiated via summary proceedings.

Once the information has been received and the publication period has elapsed, the judge, with the intervention of the Public Prosecutor's Office and of the judicial defender, shall declare the absence if applicable and shall appoint a guardian, who shall assume the judicial representation of the absent person and the deposit of the property, if any.

By operation of law, the guardian is vested with all general and special powers required for the defense in court; but to settle, to submit matters to arbitral proceedings and to repudiate inheritances or donations and legacies, judicial authorization is required.

The judicial defender, appointed to represent the presumed absentee during the proceedings to which this section refers, shall have these same powers.

The judge shall confer the office upon the guardian and shall issue the credential evidencing the representation; and upon prior inventory, appraisal of the property and furnishing of security in the manner established in the Civil Code, delivery thereof shall be made to him.

Once the office has been conferred, or the delivery of property formalized, if any such property exists, the guardian shall assume the representation of the absentee, the judicial defender and the depositary thereupon ceasing in their offices, unless the appointment as guardian has fallen upon one of them.

Those who consider themselves entitled thereto pursuant to the Civil Code may obtain administration of the property of the absent person. The petition shall be published in the Official Gazette and in another newspaper of greatest circulation; and in the event opposition is filed, it shall be processed in summary trial.

The judge shall order that administration of the property of the absent person be granted to the interested parties, in accordance with the provisions of the Civil Code.

The request to obtain possession of the property by the heirs shall be subject to the provisions of the preceding article, the following having to be proved:

1º.That the absence has continued since the administration of the property was conferred.

2º.That the presumed death of the absent person has been declared.

3º.That at the time possession is requested there is a right to the property as testamentary or intestate heir.

Every tutor, protutor, or guardador shall request discernment of the office from the judge of First Instance; and the judge, before confirming or discerning it, may conduct, on its own initiative, an inquiry regarding the morality and aptitudes of the appointee. With the result of the inquiry, the judge shall confirm or not confirm the appointment and shall discern the office, proceeding to the inventory and appraisal of the property, as well as to the furnishing of the corresponding guarantees, in accordance with the Civil Code.

Excuses or impediments to holding the offices of tutor, protutor or guardian must be presented within fifteen days, counted from the date of the notification of the appointment. However, those arising during the exercise of said offices shall be admissible at any time. As long as the excuse has not been accepted and the office has not been discerned to another person, the person who has raised the excuse or impediment may not withdraw from the exercise thereof.

The removal of the tutor, protutor or guardian shall be processed in the form of an incident, with the intervention of the Public Prosecutor's Office.

To alienate or encumber property of minors, incapacitated persons or absentees, whoever has them under his administration shall obtain judicial license, fully proving that there is urgent necessity or that manifest benefit results from the act sought to be carried out, in favor of his principal. There is benefit and necessity in contracts concerning property of minors, incapacitated persons or absentees:

1º.When the proceeds of the immovable property are insufficient to satisfy legitimate claims or to meet the specific maintenance needs of the minor or incapacitated person.

2º.When, in order to preserve the property and its proceeds, no means can be found other than to encumber them.

3º.When redemption of a greater encumbrance is procured by means of a lesser one.

The applicant shall state before the respective judge:

1º.The title under which the applicant administers the property, which the applicant must prove.

2º.The reasons obliging the applicant to request the license.

3º.The means of evidence to prove the utility and necessity of the contract or obligation.

4º.The bases of the respective contract.

5º.The property the applicant administers, with designation of that which the applicant proposes to alienate or encumber.

The judge, with the intervention of the Public Prosecutor's Office and of the protutor, where applicable, shall order the gathering of the proposed evidence and shall carry out on its own initiative such proceedings as it deems appropriate.

If appraisal of property is necessary, it shall be carried out by an expert appointed by the judge.

Once the evidence has been gathered and the Public Prosecutor's Office has been heard, the judge shall issue an order that shall contain:

1º.Whether or not the oppositions that may have been raised are well-founded.

2º.The declaration of utility and necessity, where applicable.

3º.The authorization to proceed with the sale or encumbrance of the property, setting the bases of the transaction.

4º.The appointment of a notary and the determination of the relevant excerpts of the file to be included in the deed, in which the judge shall also appear. In the case of the sale of property, the judge may order that it be held by public auction, setting the terms thereof.

The judge shall always make the declaration of utility and necessity under the liability of all those who have intervened in the proceedings.

For other cases in which judicial authorization is needed, the provisions of this section shall be observed, insofar as they are applicable.

In the cases in which, in accordance with the provisions of the Civil Code, the judge may supply the consent of the ascendants or guardians so that a minor may contract marriage, the minor's request shall be processed in the form of an incidental proceeding with the intervention of the Public Prosecutor's Office and the opposing party.

Once the evidence has been presented, the judge, after such reports as he deems advisable, shall grant or deny the license. The decision is appealable.

If, before granting the license, the father, the mother, the grandparents, or the guardian, as the case may be, of the person who requested it give their consent, the file shall be discontinued.

Divorce or separation by mutual consent may be requested before the judge of the conjugal domicile, provided that more than one year has elapsed, counted from the date on which the marriage was celebrated.

The following documents shall be submitted with the application:

1º.Certifications of the marriage record, of the birth records of the children procreated by both and of the death records of the children who have died.

2º.The marital capitulations, if any were entered into.

3º.List of the property acquired during the marriage.

Upon admitting the request to proceedings, the judge may decree the suspension of cohabitation and shall provisionally determine which of the spouses shall take charge of the children and what maintenance allowance corresponds to them, as well as that which the husband must provide to the wife, if applicable. The judge may also order all measures he deems advisable for the adequate protection of the children and of the wife.

Children under ten years of age, without distinction as to sex, and daughters of all ages, shall remain during the divorce or separation proceedings in the care of the mother; and sons over ten years of age, in the care of the father.

However, if in the judge's opinion there are well-founded grounds, the judge may entrust them to the care of the other spouse or of a third person.

The judges shall likewise determine the manner and form in which the parents may maintain relations with the children who are not in their care.

The judge shall summon the parties to a conciliation hearing, setting day and time for it to be held within the period of eight days. The parties must appear personally, assisted by a different attorney. After prior ratification of the petition, the judge shall make to them the appropriate reflections, in order that they continue the conjugal life. If they reconcile, the judge shall declare the definitive dismissal of proceedings.

Only the spouse who is outside the Republic may appoint an attorney-in-fact for this act. In no case may the spouses designate the same person as attorney-in-fact to conduct these proceedings.

If there is no conciliation, at the same meeting or subsequently, a draft agreement shall be submitted to the judge setting forth, where applicable, the following points:

1.To whom the minor or incapacitated children born of the marriage are entrusted.

2.At the expense of which of the spouses the children are to be supported and educated, and when this obligation falls upon both spouses, in what proportion each of them shall contribute.

3.What pension the husband shall pay to the wife, if she does not have her own income sufficient to cover her needs.

4.Guarantee to be provided for performance of the obligations assumed by the spouses under the agreement.

The agreement shall not prejudice the children, who, notwithstanding the stipulations, shall retain intact their rights to be supported and educated, in accordance with the law.

The judge shall approve the agreement if it is in accordance with the law and the proposed guarantees are sufficient, directing, in such case, that the corresponding deeds be executed, if applicable.

Once the foregoing requirements have been met, and the mortgage guarantees have been registered, where applicable, the judge shall render the judgment within eight days, which shall decide on all points of the agreement and shall be appealable.

After six months from the separation judgment having become final, either spouse may request that it be converted into divorce, based on the final judgment rendered in the separation proceedings. This petition shall be decided as a matter of law, after a two-day hearing to the other party. In case of opposition, it shall be processed in an ordinary trial.

At any stage of the separation or divorce proceedings and even after the separation judgment, the spouses may reconcile, rendering said judgment without effect. Only for causes subsequent to the reconciliation may new proceedings be instituted. The reconciliation may be recorded by personal appearance before the judge, by memorial with authentication of signatures, or by public deed.

The judgment of separation, the reconciliation subsequent thereto and the judgment of divorce shall be registered on its own initiative in the Civil Register and in that of Property, for which purpose the judge shall remit, within the third day, certification on Spanish paper of the respective decision.

All provisions contained in Articles 427, 431, 432 and 433 are applicable to the proceedings for separation or divorce on determined cause, which shall be processed in the ordinary procedure.

The woman may request recognition of her pregnancy in cases of absence, separation or death of her husband.

The instituted or legal heirs of the husband have the same right, in the event that he has died.

The request shall be made before the judge of First Instance, proving the absence, separation or death of the husband; and requesting that physicians be appointed to carry out the recognition.

The judge may order, on its own initiative or at the request of any interested person, all measures it deems necessary to verify the effectiveness of the delivery within the legal time and to establish parentage.

Upon the occurrence of the delivery, the appointed physicians shall immediately give notice to the judge, stating the time of the birth, the persons who attended, the other special circumstances with respect to the newborn and the time the newborn lived, in case it has died.

A hearing on all proceedings conducted shall be given for two days to those who have expressed interest in the proceedings; if they allege nothing in opposition, the judge shall declare what is appropriate for civil effects. If there is opposition, it shall be substantiated in the ordinary proceeding.

If the result of the proceedings is favorable to the mother or to the child, the judge shall order, notwithstanding the opposition, that the newborn be protected in quasi-possession of child status and that, from the property of the presumed father, the newborn be provided with what is necessary for his or her maintenance.

Any person who for any reason wishes to change his or her name in accordance with the provisions of the Civil Code shall request it in writing from the judge of First Instance of his or her domicile, stating the reasons for doing so and the full name he or she wishes to adopt.

The judge shall order that the information offered by the applicant be received and that notice of the application be published in the Official Gazette and in another newspaper of major circulation, three times, within a period of thirty days. The notice shall state the full name of the petitioner, the name he or she wishes to adopt, and the warning that opposition may be filed by those who consider themselves harmed by the change of name.

Upon receipt of the information and ten days having elapsed since the last publication, with no opposition having been filed, the judge shall grant the change of name and shall order that it be published a single time in the Official Gazette and that it be communicated to the Civil Registry, so that the corresponding annotation is made.

If opposition has been filed, it shall be processed as an incidental proceeding; and in view of the evidence submitted, the judge shall decide whether or not the change of name is proper. This decision is appealable.

Any person who, constantly and publicly, has used and is known by a given name different from that appearing in his or her birth record, or uses an incomplete name, or omits any of the surnames corresponding to him or her, may request before a notary, in accordance with the provisions of the Civil Code, his or her identification, which shall be recorded in a public deed; the certified copy and a copy shall be presented to the corresponding Civil Register for annotation of the record.

Identification of a third party may be requested before the judge of First Instance or a notary. The request shall be ordered to be published in the Official Gazette in an edict that shall contain the full name of the person whose identification is requested, the given names and surnames that he or she has constantly and publicly used and those appearing in his or her birth record. The applicant shall provide the documentation that he or she may have and shall propose the examination of witnesses, who may be relatives of the person whose identification is at issue.

If it concerns the identification of a third party and there is opposition within the ten days following the date of publication, it shall be pursued in an ordinary trial before a judge of First Instance, with the voluntary proceedings suspended. In this case, the notary who heard them shall remit them to the corresponding judge. If there is no opposition, the judge shall issue a decision declaring whether or not the identification proceeds and shall order that it be recorded in the Civil Register. The decision is appealable.

In the case of identification of a third party before a notary, once the edict referred to in Article 440 has been published and the period for opposition has elapsed without such opposition having been asserted, the notary may establish the notoriety of the identification in a record that shall contain:

1º.Request of the interested person, verifying the capacity in which he/she acts.

2º.Sworn statement of the interested party, regarding the elements of his/her request.

3º.Statement of at least two witnesses, who may be relatives of the person whose identification is at issue.

4º.List of the documents examined.

5º.Declaration of the notoriety of the identification, sufficiently established in the judgment of the notary.

The notary shall issue a certification of the record, which he/she shall send for purposes of its registration in the respective Register; and shall remit the file to the General Archive of Protocols.

In the event that any entry or essential circumstance has been omitted in the civil registries, the judge of First Instance, in view of the evidence presented to him and of such evidence as is gathered on its own initiative, following a prior hearing of the Public Prosecutor's Office, shall order that the omission be remedied or that the corresponding rectification be made, ordering application of the sanctions established by the Civil Code, if such be the case.

Whoever wishes to establish a family estate shall request in writing, from the judge of First Instance of his domicile, that he grant the corresponding authorization.

The application shall state:

1.The names and surnames, age, civil status, domicile and nationality of the persons in whose favor it is desired to establish the estate.

2.The location, value, dimensions, boundaries of the immovable property or properties, description of the industrial or commercial establishment, as applicable, and of the other property that is to constitute the family estate, as well as the other circumstances necessary for its identification.

3.The time the family estate is to last.

4.The value of the property and the amount of the applicant's debts.

He shall attach to his application: title of ownership; certification from the Register of Property that the immovable properties have no encumbrance of any kind, except easements; sworn statement that the other property bears no encumbrances; and certification of the declared value of the immovable properties for purposes of payment of fiscal contributions.

If the judge finds the request well documented, the judge shall order that it be published in the Official Gazette and in another of the newspapers of greatest circulation, three times, within the term of thirty days.

If before the judicial declaration there is opposition, the judge shall resolve it through the procedures of the ordinary trial, provided that documentary evidence establishing the right to oppose is attached to the claim, these proceedings being suspended in the meantime.

Once the publications have been made without any opposition having been filed, or, as applicable, once it has been rejected or declared unfounded, the judge, following a hearing of the Public Prosecutor's Office, shall declare that there are grounds to constitute the family patrimony and shall order the execution of the respective public deed, determining the person of the founder, the names of the beneficiaries, the property comprised, the value and the duration of the family patrimony. The decision granting the authorization shall be transcribed in the constitutive deed, for which purpose the judge shall order a certification to be issued.

The family patrimony shall produce all its legal effects from the moment the constitutive deed is executed, and from its registration in the Register of Property, with regard to immovable property. Once the family patrimony has been constituted, no action for nullity thereof may be brought.

For a voluntary judicial auction to be announced, the person requesting it must prove that what is to be the object of the auction belongs to that person and the subsisting encumbrances and annotations appearing in the register, with notice to be given to those having an interest.

Once the foregoing requirements have been met, the judge shall grant the announcement of the auction, in the form and under the conditions proposed by the person who requested it, which may be repeated as many times as the interested party requests.

In the voluntary auction, the seller or whoever legitimately represents his rights is free to establish such conditions as suit him and to accept the proposals made by the bidder.

Without the seller's consent being of record, the judge may not order the warning of auction sale; and the clerk or acting witnesses shall take care to cause it to be set forth in the respective record and to specify therein all the conditions of the contract.

The voluntary auctions referred to in this chapter may be carried out before a notary, under the conditions freely set by the parties.