Spanish citizens will have recourse to notaries to resolve civil, commercial or inheritance matters

posted in: National news

image name

The Voluntary Jurisdiction Act, passed on 19 June 2015 by Spanish Congress, will allow Spanish citizens recourse to any of the almost 3,000 notaries distributed throughout the country (even in towns with a population of just 500) to resolve a range of civil, commercial or inheritance matters where there is no dispute, and which therefore do not require the involvement of a judge. This will remove the need to travel to a courthouse that in many cases is far from the home of the parties involved.

Congress, like the notariat, was of the opinion that there is a range of matters which could and should be resolved by public servants other than a judge. Qualified legal experts in the form of notaries, who are subject to a statute guaranteeing their independent, impartial, rigorous and responsible action, with a public service vocation, fulfil this function for the State.

Given all the above, the Ministry of Justice has included in the Act the concept of alternative options, allowing citizens to have recourse to a clerk of the court or notary, or otherwise a clerk of the court or registrar. This freedom of choice is a welcome development for the notariat, which believes that it will serve to confirm the degree of efficacy of each public servant.

The new Act attributes competencies to notaries in various operational spheres of voluntary jurisdiction: civil and commercial law, mortgages and succession. For example, it will be possible to conclude a separation or divorce before a notary, if the couple has no children under legal age. Notaries believe that in this field they will be able to reduce considerably the 6-12 month period required by the courts to process such cases, while offering the same legal guarantees. As for marriage conducted by a notary, the profession already performs one function very closely tied to couples and families. Notaries are involved in cases such as prenuptial agreements, the recognition of children, the formal recording of family agreements, guardianship and the establishment of legal partnerships. It will now also be possible to marry before a notary. Civil marriage can also be entered into before the judge of the civil register or the justice of the peace, clerks of the court, local councillors and mayors.

In the field of inheritance, notaries will be empowered to handle a range of different issues, proving highly beneficial for the general public. For example, the collateral heirs of those dying without having left a last will and testament will be able to turn to a notary to process the case and receive their inheritance, rather than a judge being required. For some years, direct heirs have been able to entrust this matter to a notary. It is a very popular option: in 2014, notaries handled more than 66,000 intestate inheritances, as such cases are known.

With regard to obligations, an option expected to prove widely popular, to give one example, is the processing before a notary of non-disputed monetary claim cases, where there is no disagreement between the parties. This will allow many such proceedings to be resolved without recourse to the courts, while shortening the current turnaround times. Regulations are likewise included for notarial auctions, which will be strictly electronic, making the procedure cheaper and more efficient.

Final mention should be made of the importance of reconciliation proceedings. For three years now, notaries have been acting in a similar field, mediation, thanks to the approval in July 2012 of an act governing this matter and allowing them to operate as mediators. It was a quite natural progression that reconciliation before a notary should be allowed, alongside mediation, since the notarial public function itself inherently entails impartial and balanced advice for the parties, in order to reach legally compliant agreements in complex situations.

The approval of a Voluntary Jurisdiction Act had been a pending issue for this and previous governments, given that the Civil Proceedings Act passed by Parliament 14 years ago included the provision for this further step to be taken.

This Act is in tune with the trend in Europe to reduce the burden faced by the courts, freeing them of cases where there is no dispute between the parties. The Spanish notariat wishes to highlight the efforts made by the current administration of the Ministry of Justice, which was required to embark on extensive reforms to the original Bill in order to achieve a sufficient degree of consensus.