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RESUMEN TEMA 7 DERECHO CIVIL
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RESUMEN TEMA 7 DERECHO CIVIL

Sources of Spanish Legal Order

Overview of Legal Sources

  • The sources of the Spanish legal order include law, custom, and general principles of law. Custom is only applicable in the absence of a relevant law, provided it does not contradict morality or public order and is proven.

Jurisprudence and Timeframes

  • Jurisprudence complements the legal system and must be reiterated and established by the Supreme Court. Timeframes are counted in days from the following day for periods extending to a year or a month, including non-working days. Laws that are penal, exceptional, or temporal do not apply to different cases or times.

Personal Law Determination

  • Personal law for individuals is determined by their nationality. In marriage scenarios, common personal law applies unless otherwise chosen by both spouses based on habitual residence or location of marriage celebration.

Legal Provisions Regarding Family Matters

Child Custody and Support Obligations

  • For matters like filiation, the habitual residence of the child determines applicable laws; if absent, national laws may apply followed by substantive Spanish law. There are obligations for child support among relatives as per international protocols such as those from The Hague.

Succession Laws

  • Succession laws dictate that national laws at the time of death govern inheritance matters. Dual nationality can arise through international treaties or last habitual residence considerations for stateless individuals.

Property Rights and Contracts

Property Law Application

  • Real estate property rights are governed by local jurisdiction where they are located; movable properties follow similar rules unless in transit where they adhere to shipping regulations based on origin or destination locations (e.g., ships registered under specific flags).

Contractual Obligations

  • Contractual obligations depend on agreed-upon laws between parties; if none exist, common national laws apply based on habitual residence or contract celebration location (e.g., employment contracts governed by service provision location). Donations follow donor's national law while disability-related contracts consider knowledge about disabilities when determining applicable laws.

Legal Representation and Nationality Acquisition

Non-contractual Obligations

  • Non-contractual obligations rely on where events occur; business management follows where primary activities take place while unjust enrichment adheres to the governing law under which value transfer occurred (e.g., compliance with legal representation regulations).

Validity of Legal Acts

  • Legal acts must comply with formalities required by either local legislation or personal/common law governing grantors' actions; maritime acts during navigation adhere to flag state regulations while Spanish law applies when authorized by diplomatic representatives abroad.

Civil Status and Nationality Regulations

Civil Status Determination

  • Civil status adherence depends on civil neighborhood; if parents have differing neighborhoods, children's affiliation is determined accordingly within six months post-birth/adoption options available for children aged 14 years onward regarding their civil status choice based on parental ties or birthplaces.

Nationality Acquisition Process

  • Foreigners acquiring nationality must choose their civil neighborhood first from residency then birthplace criteria; Spaniards born abroad retain nationality rights under specific conditions including declarations made before age limits set forth (20 years old/2 years post-emancipation).

Justification of Civic Conduct and Nationality Regulations

Requirements for Civic Conduct

  • Individuals must justify good civic conduct and a sufficient degree of integration into society. They are required to make a declaration swearing or promising loyalty to the king and obedience to the Constitution and laws. Additionally, they must declare renunciation of their previous nationality and register this declaration in the Spanish Civil Registry.

Loss of Original Nationality

  • Emancipated individuals residing abroad who voluntarily acquire another nationality or exclusively use the foreign one will lose their original nationality after three years unless they declare their intention to retain it. This applies also to those born abroad with Spanish nationality if they do not declare retention when acquiring another nationality.

Conditions for Retaining Nationality

  • The loss of Spanish nationality does not occur if Spain is at war. Furthermore, individuals may lose their Spanish nationality if they serve in foreign military or political positions against government prohibitions, without recovery options available under certain conditions such as fraud or false declarations within 15 years. Legal residency in Spain allows for potential recovery of lost nationality through exceptional circumstances approved by the Ministry of Justice.

Legal Framework for Marriages

Marriage Promises and Obligations

  • A promise of marriage does not create legal obligations; however, failure to fulfill this promise incurs liability for expenses incurred up until one year from the date of refusal. Minors who are not emancipated cannot marry, nor can those already married or closely related by blood or adoption up to a certain degree unless dispensed by a judge.

Celebrating Marriages

  • Various officials can officiate marriages including judges, notaries, and consular representatives; special provisions exist for emergencies where military officers can perform ceremonies with specific requirements like witness presence and medical certification in life-threatening situations. Secret marriages may be authorized under grave circumstances documented in civil registries.

Marriage Capacity and Nullity

Requirements for Valid Marriage

  • To recognize civil effects, an act confirming matrimonial capacity must be processed along with free consent before witnesses; marriages conducted without proper consent are deemed null. Requests for annulment can be made by spouses, public prosecutors, or interested parties based on various grounds including lack of consent due to coercion or identity errors during marriage ceremonies.

Separation Procedures

  • Judicial separation is mandated when there are minor children involved unless immediate danger exists; mutual agreements require formal documentation post three months from celebration while ensuring children's welfare is prioritized throughout proceedings regarding custody and support arrangements following divorce decrees which include comprehensive terms covering child care responsibilities among other marital assets management issues post-separation.

Legal Framework for Child Custody and Support

Child Support and Custody Arrangements

  • In cases of nullity, separation, or divorce involving children over 16 years old needing support measures, the court will issue a ruling that takes effect when the child turns 18.
  • The judge must hear from the minor before deciding on custody arrangements and can limit or suspend visitation rights if there are serious breaches of judicial obligations.
  • Economic imbalance may entitle one spouse to temporary or indefinite alimony, with considerations including age, health status, economic means, and contributions to family life.
  • Alimony obligations continue even after death; however, they can be modified based on changes in financial circumstances or extinguished under specific conditions such as remarriage.
  • In cases of nullity where cohabitation occurred, the innocent spouse is entitled to compensation; if no agreement is reached between spouses regarding custody or support, the judge intervenes.

Legal Rights Regarding Children

  • Measures concerning child custody include restrictions on leaving the country without consent and managing shared property during separation.
  • Affiliation can occur through natural birth or adoption; natural affiliation can be either marital (within marriage) or non-marital (outside marriage).
  • Parental responsibilities extend beyond legal guardianship; both parents must ensure care and support regardless of their custodial status.

Determining Parentage

  • Parentage has retroactive effects established by civil registry documentation; marital presumption applies unless disproven within six months post-birth.
  • Non-marital parentage is recognized through formal declarations at birth registration; minors require judicial approval for recognition actions.

Claims Related to Parentage

  • Claims regarding parentage can be made by parents or children within specified timeframes following knowledge of relevant facts; heirs may pursue claims if a child dies prematurely.
  • Impugnation rights exist for both matrimonial and non-matrimonial affiliations within set periods post-registration.

Financial Obligations Among Relatives

  • Financial support among relatives includes essential needs like food, housing, clothing, medical assistance, education for minors, and pregnancy-related expenses.
  • Obligations cease upon death of the obligated party but may also end due to improved financial situations of the recipient or misconduct leading to disinheritance.

Responsibilities Under Parental Authority

  • Parental authority should prioritize children's interests while respecting their rights. This includes nurturing their physical and mental well-being through education and proper representation in legal matters.

Legal Framework for Child Protection and Guardianship

Parental Authority and Responsibilities

  • Parents exercise authority over their children for a maximum of two years. If the child is underage and not emancipated, parental assistance is required, potentially involving a judge in case of disagreements.
  • Measures to protect children include preventing abduction, prohibiting contact with the child by certain individuals, and suspending parental rights if necessary.
  • In cases of conflicting interests between parents and non-emancipated children, a defender may be appointed to represent the child's interests in legal matters.

Management of Children's Assets

  • Parents are responsible for managing their children's assets with care similar to their own, except for specific exceptions like gifts or inheritances. They cannot renounce children's rights or alienate property without judicial authorization.
  • Children can demand accountability from parents regarding asset management after parental authority ends; this action has a three-year limitation period post-termination.

Child Protection Measures

  • Public entities provide protection for abandoned minors, notifying relevant authorities within 48 hours. This includes immediate suspension of parental rights when necessary.
  • Parents can request cessation of suspension within two years; after that period, only the public prosecutor can oppose it.

Foster Care Regulations

  • When parents cannot care for their child due to serious circumstances, they may request temporary guardianship from public entities for up to two years through family or residential foster care arrangements.
  • The child's situation must be reviewed every six months during foster care. Consent from both the foster parent and the child (if over 12 years old) is required for placement.

Adoption Procedures

  • To adopt a child, the adopter must be at least 25 years old with an age difference of at least 16 but no more than 45 years unless adopting siblings or special needs children.
  • Adoption requires judicial resolution based on proposals from public entities and consent from all parties involved. The origins of the adopted child are preserved for 50 years.

Legal Representation in Absence Cases

  • In cases where an individual goes missing, a judicial secretary can appoint a representative to act on behalf of the absent person in urgent matters.
  • The spouse is typically considered first as a representative; if unavailable, other close relatives may serve as representatives under specified conditions.

Handling Death Cases

  • A person is presumed deceased after ten years without news or five years if they were over 75 at disappearance. Special provisions apply in cases involving imminent risk due to violence against life.

Legal Framework for Death Declaration and Guardianship

Legal Procedures Following a Death Declaration

  • A declaration of death initiates the succession process for the deceased's assets, with heirs restricted from making gratuitous disposals for up to five years post-declaration.
  • Heirs are required to create a detailed notarial inventory of movable and immovable property, which will be recorded in the civil registry alongside records of disappearance, absence, and death.
  • The legal framework includes provisions for guardianship of minors who are unprotected or not under parental authority, with judicial oversight ensuring proper care.
  • Parents can designate a guardian through a will or public document; relatives called to promote guardianship must inform relevant authorities if necessary.
  • Judicial authorities establish guardianship through voluntary jurisdiction procedures, ensuring that guardians act in the best interest of minors.

Responsibilities and Rights of Guardians

  • Guardians may be individuals or non-profit entities focused on child protection; those previously removed from guardianship cannot serve again.
  • Multiple individuals can serve as guardians if designated separately for the minor and their assets; they must act collectively when appointed together.
  • The guardian is responsible for representing the ward’s interests while prohibited from receiving gifts until their management is approved by judicial authorities.
  • Duties include providing food, education, social integration, managing assets, reporting annually to judicial authorities, and considering the minor's opinions before decisions affecting them.
  • Guardians must account for their management within three months after ceasing duties; claims against them have varying prescription periods based on damages caused.

Emancipation and Support Measures

  • Emancipation allows minors over 16 years old to gain legal capacity upon request; this requires consideration of parental circumstances regarding custody or marital status.
  • Support measures aim to assist disabled individuals in exercising their legal capacity while respecting their wishes and promoting equality in personal development.
  • These measures should uphold human dignity and fundamental rights while adhering to principles of necessity and proportionality in support provision.

Curatela: Formal Support Mechanism

  • Voluntary support measures can be established two years prior to reaching majority age at the request of various stakeholders including parents or tutors.
  • Informal guardianship occurs when no effective voluntary or judicial support exists; formal curatela provides ongoing assistance reviewed periodically by judicial resolution.
  • Individuals may propose nominations or exclusions for curators via public writing; curators must facilitate decision-making autonomy for those they assist.

Curador Obligaciones y Autorizaciones

Responsabilidades del Curador

  • El curador debe exigir una fianza y está obligado a hacer un inventario dentro de los 60 días desde la posesión del cargo, ante el letrado de la administración de justicia.
  • Necesita autorización para realizar actos significativos como enajenar o agravar inmuebles, arrendar por más de 6 años, o renunciar a derechos.
  • Aceptar herencias sin beneficio de inventario, hacer gastos extraordinarios o interponer demandas en nombre de la persona son acciones que requieren aprobación previa.
  • También necesita autorización para dar o tomar préstamos, contratos de vida o renta vitalicia si implican inversiones extraordinarias.
  • En situaciones urgentes donde no haya guardador de hecho, la entidad pública proporcionará apoyo provisional.