Marriages, separations and divorces, increasingly demanded before a notary


S. F.




Six years have passed since the Voluntary Jurisdiction Law (LJV) came into force, a norm that expanded the powers of notaries, allowing many matters to be dejudicialized. Since then and until May 2021 (latest consolidated data), the nearly 2,800 Spanish notaries have carried out more than 220,000 acts of voluntary jurisdiction. July 23, 2015 marked a before and after in the activity of notaries in our country. That day, Law 15/2015, of July 2, on Voluntary Jurisdiction came into force, which attributed to notaries and other legal operators the ability to act in numerous acts of voluntary jurisdiction that, until then, were entrusted to the judges. This law, therefore, came to discharge the courts of non-contentious matters; and it responded to a social demand allowing, with the same legal certainty, to streamline important services.

Thus, as José Ángel Martínez Sanchiz, president of the General Council of Notaries, recalls, “legal acts such as the celebration of marriage or divorce or declaration of intestate heirs (without a will) of collateral relatives they became able to be carried out by notaries ». In fact, since then, and until May 2021 (latest consolidated data), notaries have carried out more than 220,000 acts of voluntary jurisdiction. Of all of them, those related to the family stand out, such as the celebration of marriages, separations or divorces, which account for 41% of the total. They are followed by others such as those related to successions, which are around 15%. The rest is distributed among very diverse acts such as conciliation or claiming of non-contradicted monetary debts, among others.

The most demanded by citizens

Since the entry into force of the Voluntary Jurisdiction Law, notaries carry out more acts related to the family. Specifically, the celebration of marriages and the ability to carry out separations or divorces, as long as it is by mutual agreement and there are no minors in charge, were two of the most outstanding powers attributed to notaries in the LJV. Time, moreover, has confirmed that they are the most demanded by citizens. Since the entry into force of the law until May 2021, 43,399 marriages have been carried out before a notary, 20% of the total; as well as 46,957 marital separations or divorces, 21% of the total.

In both cases, notaries have also assumed other related functions. For example, with regard to marriage, since April 30, 2021, they are in charge of authorizing the marriage file, providing this service with the efficiency, speed and security of the notarial function, helping couples to process their files in the shortest period of time possible and giving them free advice, if they so wish, on other issues, such as the regime that will govern their marriage and the possibility of making marriage agreements. Regarding divorces, the notary, as did the judge, verifies that the regulatory agreement for the suspension of life in common agreed by the parties complies with the law and is equitable for the two members of the couple; that is, that the document does not include aspects that discriminate against any of them. And all this is incorporated and formalized within the public deed of divorce.

Acts in matters of succession

The files related to the area of ​​inheritance also underwent some modifications with the new law. This is the case of the declaration of intestate heirs; that is, when there is no prior will. These were already one of the acts of voluntary jurisdiction most demanded by citizens and had been carried out before a notary for several years. However, these professionals only had jurisdiction to declare intestate heirs to ascendants, descendants and spouses of the deceased. On the other hand, with the new law, the notaries saw their powers extended to collateral relatives such as brothers, nephews, uncles or cousins ​​of the deceased person (which had to be done before the judge).

The reception of these new attributions by society has been really good. In fact, Until May 2021, a total of 24,629 records of notoriety of intestate collateral heirs have been carried out, which represents 11% of the total, the fourth type of voluntary legal acts most in demand since the entry into force of the LJV.

Also in matters of inheritance, the Voluntary Jurisdiction Law granted notaries the competence to carry out an inventory of an inheritance before its acceptance or resignation. The demand for this act has increased over the last six years to a total of 4,963 legal acts carried out until May 2021.

Another novelty that this law incorporated was the possibility that several heirs, when the distribution of the inheritance is being hindered by another of them, can go to a notary public to send the latter a notification and requirement, giving him a period of 30 calendar days to decide whether to accept his part or renounce it. The act also warns you that, if you do not express your will at that time, the inheritance will be considered accepted purely and simply, without having to go to court. During the six years of validity of the rule, its demand has increased to add 4,970 legal acts carried out by notaries until May 2021.

In addition, if the joint heirs with the intention of leaving account for at least half of the inheritance, they can request the notary to appoint a dative accountant-divider to carry out the partition. Along with this, the LJV attributes to the notary the power to carry out an equity control of the partition terms decided by the accountant. Although it is not one of the most demanded voluntary legal acts, it is true that during this time it has experienced constant growth every year, reaching a total of 1,214 legal acts carried out until May 2021.

Finally, also in the area of ​​inheritance, the LJV expanded the competence of notaries by assigning them certain succession files such as the presentation, witness, opening and protocolization of closed wills, holographic wills and exceptionally orally executed wills.

Conciliation before a notary

On the other hand, the Voluntary Jurisdiction Law included another novelty, thanks to which citizens can reach agreements before reaching a lawsuit. To this end, this rule gave notaries powers to carry out conciliation files in commercial, inheritance or commercial disputes. relatives given its legal preparation, impartiality and control of the Law.

Claim of uncontradicted monetary debts

Another of the assumptions that the LJV modified was the claim for monetary debts in which there is no opposition from the debtor (not contradicted). As of the approval of this rule, the creditor can go to any notary of the debtor’s domicile to claim the debt with all the documents that justify it.

If everything is correct, the debtor is given a period of twenty days. If during this time, the debtor has not satisfied the debt or has opposed it, the notarial claim becomes executive and becomes an extrajudicial execution title, which allows the creditor to file an executive claim and request directly in the judged the seizure of the debtor’s assets. In these six years, 1,392 claims for monetary debts have not been disputed before a notary public. And, in parallel, the LJV legislated in the reverse case.

That is, given the possibility of the debtor offering to pay as an alternative to resorting to the Court of First Instance. This allows debtors to meet their obligations and pay in cases where the creditor refuses to receive payment or makes it impossible.

Notarial auction

The holding of notarial auctions was another aspect that was also expanded with the LJV. Until then, notaries could already hold auctions; for example, those that were carried out in compliance with a legal provision or judicial or administrative resolution. Based on the Voluntary Jurisdiction Law, an electronic procedure has been regulated through the BOE Auction Portal. From then on, every notarial auction is subject to this electronic procedure, and voluntary auctions can also be carried out before a notary.

During these six years, therefore, the LJV has endowed notaries with new powers that have freed the courts of an important workload so that citizens can resolve certain matters in an agile and safe way. As Martínez Sanchiz, president of the General Council of Notaries, points out, “we notaries have been providing the new functions that the Voluntary Jurisdiction Law grants us with the efficiency, speed and security of our professional function, helping citizens to resolve numerous issues. Undoubtedly, this sixth anniversary of the entry into force of the law, and the more than 220,000 voluntary legal acts carried out during this time, endorse our work and reinforce the work we have been doing ”, he concludes.

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