National Report Mexico - Notarius International
National Report Mexico - Notarius International National Report Mexico - Notarius International
Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 205 18 (article 30 section II), as does the Civil Code of Guerrero (article 412). We should point out that article 157 of the Civil Code of Baja California Sur imposes a minimum age of 18 for the man and 16 for the woman. If necessary, dispensations of age can be granted for serious, justified causes. This occurs, in any case, with minors who, in order to marry, require the consent of their progenitors or, if their parents are not living, of their grandparents. The law also provides that, in the absence of parents or grandparents, consent must be given by guardians and, in extreme cases, by the judge of the family court. 3.3. Divorce 3.3.1. Administrative divorce Article 266 of the CCFD state specifically that, “Divorce dissolves the marital union and renders the spouses free to enter into another union”. The simplest, quickest way in which a divorce can be obtained is known as an administrative divorce. The marital union may be dissolved through a simple declaration by both spouses when they are both of legal age and have no children below the age of eighteen and have no assets or have liquidated the property held jointly by the spouses, if any (article 272). 3.3.2. Judicial divorce by consent The second type of divorce is somewhat more complex. It presupposes that the spouses wish to divorce, but do not fulfil the conditions provided in the first paragraph of article 272, i.e., they are not yet of legal age or they have children or they have not liquidated the property held jointly by the spouses. If any of these situations apply to the spouses, they are obliged to submit an agreement relating to these points to the family court. When approval has been obtained, the procedure continues on a routine basis. It is important to specify that both procedures, both the administrative procedure (article 272 of the CCFD) and the judicial procedure for prior approval of the agreement (article 273 of the CCFD) cannot under any circumstances be requested until one year has passed from the celebration of the marriage, whereby the legislator ensures that it is not the result of a passing whim or an impulsive decision by the spouses. 3.3.3. Divorce due to a serious cause Unlike the previous two types, the third and final type of divorce in our law takes place due to the existence of a serious cause, as provided in detail in article 267 of the CCFD, and naturally does not entail the consent of both spouses. The procedure for requesting this type of divorce is also provided in the Code of Civil Procedure for the Federal District, though in a different section since there is no specific procedure for it, it being processed through the procedures of ordinary proceedings, which are governed in articles 251 et seqq. of that same legal text. 3.4. Marital property regime The Civil Code expressly provides that a marriage contract must be made, according to the regime for property held jointly by the spouses or separation of property (articles 98, 178 CCDF). 3.4.1. Property held jointly by the spouses Depending on the matrimonial contract, this regime may include any property owned by the spouses, not only at that moment but also any property that they may acquire in future, is included in a fund of property. In the marriage contract the spouses may define which property is jointly held. In the case of immovable property being made joint property, the contract that governs the joint property must be executed in public deed before a notary and must also be entered at the Public Land Registry for them to take effect vis-à-vis third parties. As a general rule in most states, unless the spouses have agreed otherwise, the joint property comprises all property acquired by one or both of the spouses after the date of marriage (community of acquisitions). However, property acquired by a gift to one of the spouses only or by succession or testamentary legacy or by the whim of fortune, remains separate property of the said spouse (as well as property acquired prior to the marriage) (article 172 CC Chihuahua, article 182 quintus CCDF, articles 303-306 CC Jalisco, article 207 CC Oaxaca, article 338 CC Puebla, articles 735-738 CC Quintana Roo, articles 196-201 CC Tabasco, article 173 CC Tamaulipas, article 172 CC Veracruz). 3.4.2. Separation of property In the regime of separation of property, the spouses retain ownership and administration of the assets that belong to them under the contract, along with any income that may be generated from them. This is precisely the opposite situation to property held jointly by the spouses. 3.4.3. Legal presumptions In practice, an increasing number of couples prefer the regime of separation of property, although it is true that previously most spouses chose to hold their assets jointly. It is also clear that an important reason for this is that when no marriage contract is executed, many civil codes in the Republic establish the legal presumption that the property regime is that of property held jointly by the spouses. This is, in fact, the general rule specified in the following civil codes: the Civil Codes of Chihuahua (article 165), Morelos (article 141), Nuevo León (article 178), Puebla (article 338), Quintana Roo (article 719), Tabasco (article 180) and Veracruz (article 166). The presumption is of property held jointly in the following legal systems: Aguascalientes (article 209), Jalisco (article 282), Oaxaca (article 206), Sonora (article 270) and Tamaulipas (article 172). Furthermore, the following codes expressly contemplate a presumption which is directly contrary to this: Campeche (article 189), Guanajuato (article 176), Guerrero (article 437), the Federal Code of Hidalgo (article
206 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005 60), the Civil Codes of Michoacán (article 173), Querétaro (article 166), Tlaxcala (article 60) and Yucatán (article 117) and the Federal Code of Zacatecas (article 138) and separation of property will then be considered as established, with the relevant legal effects. The other codes contain no express provision in this regard. 3.4.4. Marriage Contracts on separation of property The contract that establishes separation of property must be recorded in an authentic act if that is the case, except when made prior to the marriage (article 180 CCDF). In any case, it must contain a specific inventory for each solely-owned asset and any debts. The most important legal consequence of separation of property is, naturally, the unquestionable ownership of the solely-owned assets. Thus, the income from assets continues to belong to the spouse that owns them. It is also expressly established that each spouse has the sole right to acquire and manage income from services provided by them. There is a very important exception to this relating to cases in which the spouses acquire property jointly by donation, inheritance, bequest, gift or any other title free of charge. In this case, both spouses are responsible for the management of the asset and it is considered that the relevant division must be carried out. Neither of the spouses may charge the other fees for personal services, but a recent, somewhat controversial, amendment in Mexico City now provides that compensation may be demanded of up to 50% of the assets acquired in the marriage (article 289 bis of the CCFD. 3.5. Consensual property regimes and marriage contracts As we have already seen, our law allows the spouses to make any express marriage contract that they see fit either to create property held jointly by the spouses or establish separation of property. In any case, the contract defines their situation with regard to property. However, the law establishes the legal presumption that everything that is not expressly stipulated must be governed by the general provisions applying to property held jointly by the spouses (articles 183-206 bis of the CCFD). Section V of article 98 states that an application to marry must necessarily be accompanied by an agreement made by the prospective spouses with regard to their assets, which must clearly state the type of system agreed. Other legal systems, on the other hand, are much more specific in that regard. The second paragraph of article 171 of the Civil Code of Veracruz states that, when the presumption has been applied, the rules provided for civil societies or co-ownership will apply as far as possible. Nevertheless, a recent reform now requires the simultaneous presence before a notary of both spouses in an acquisition in order for any asset to be considered as an indivisible, communal asset. Furthermore, most federal states in the republic no longer require the need for judicial authorisation to make agreements between spouses. Hardly a dozen states still require permission: Campeche (articles 185 and 186), Chiapas (articles 171 and 172), Guerrero (articles 432 and 433), Hidalgo (articles 176 and 177), Michoacán (articles 170 and 171), Oaxaca (articles 173, 174 and 175), Quintana Roo (articles 712, 713 and 714), San Luis Potosí (articles 159 and 160), Sinaloa (articles 174 and 175), Tabasco (articles 173, 174 and 175), Tlaxcala (article 58) and Zacatecas (articles 131 and 132). 5 3.6. Maintenance and alimony The concept of maintenance contained in Mexican law is extremely broad. Thus, article 308 states that “Maintenance consists of food, clothes, housing and treatment in the event of illness. As far as minors are concerned, maintenance also includes the necessary costs of primary education for the person receiving the maintenance and to provide that person with some honest trade, art or profession appropriate to his or her sex and personal circumstances”. In the case of divorce, the general principle established in article 302 should apply: “The spouses must provide alimony for each other; the law will determine when this obligation continues to exist in cases of divorce and other cases stated in the law itself”. Article 288 states that in cases of necessary divorce, the guilty party may be ordered to pay for alimony to the innocent spouse and even in cases of divorce by mutual consent, the former wife may receive alimony for the same length of time as the duration of the marriage, provided that she does not have sufficient income or does not find another partner. The former husband has the same right, but he must prove that he is unable to work and lacks sufficient income. 3.7. Non-marital joint property (homosexual or heterosexual) or marriage between homosexuals 3.7.1. Cohabitation without marriage This has been established, since our civil law attaches particular importance to the institution of marriage. Proof of that is the complex solemnity of the requirements for its celebration (articles 97-113 of the CCFD) and in the inclusion of basic principles governing the origin and stable development of the family (4th article of the PCUSM; articles 162, 163, 164, 168 of the CCFD; article 940 of the Code of Civil Procedure of the Federal District). In the philosophical dogma relating to this context, it is clear that the legislator attaches small importance to other types of institutions that in some way differ from the legal formality of the institution of marriage. This is the case, in fact, with relationships occurring between unmarried people. What in ordinary language is known as a “unión libre” (free relationship) is referred to as “concubinato” (cohabitation) in our civil law. Nevertheless, from the social point of view, free relationships are nowadays common either for reasons of mu- 5 FERNANDO ANTONIO CÁRDENAS GONZÁLEZ, „Autorización judicial para contratar entre cónyuges“ (Judicial authorisation to make agreements between spouses), in escribano, the official journal of the ANNM (Mexican Association of Notaries), AC., no. 28, Mexico, 2003, page 22.
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206 J. A. Márquez González, <strong>National</strong> <strong>Report</strong> <strong>Mexico</strong> <strong>Notarius</strong> <strong>International</strong> 3-4/2005<br />
60), the Civil Codes of Michoacán (article 173), Querétaro<br />
(article 166), Tlaxcala (article 60) and Yucatán (article<br />
117) and the Federal Code of Zacatecas (article 138) and<br />
separation of property will then be considered as established,<br />
with the relevant legal effects.<br />
The other codes contain no express provision in this regard.<br />
3.4.4. Marriage Contracts on separation of property<br />
The contract that establishes separation of property<br />
must be recorded in an authentic act if that is the case,<br />
except when made prior to the marriage (article 180<br />
CCDF). In any case, it must contain a specific inventory<br />
for each solely-owned asset and any debts.<br />
The most important legal consequence of separation of<br />
property is, naturally, the unquestionable ownership of the<br />
solely-owned assets. Thus, the income from assets continues<br />
to belong to the spouse that owns them. It is also expressly<br />
established that each spouse has the sole right to acquire<br />
and manage income from services provided by them.<br />
There is a very important exception to this relating to<br />
cases in which the spouses acquire property jointly by donation,<br />
inheritance, bequest, gift or any other title free of<br />
charge. In this case, both spouses are responsible for the<br />
management of the asset and it is considered that the relevant<br />
division must be carried out.<br />
Neither of the spouses may charge the other fees for<br />
personal services, but a recent, somewhat controversial,<br />
amendment in <strong>Mexico</strong> City now provides that compensation<br />
may be demanded of up to 50% of the assets acquired<br />
in the marriage (article 289 bis of the CCFD.<br />
3.5. Consensual property regimes and marriage contracts<br />
As we have already seen, our law allows the spouses to<br />
make any express marriage contract that they see fit either<br />
to create property held jointly by the spouses or establish<br />
separation of property. In any case, the contract<br />
defines their situation with regard to property.<br />
However, the law establishes the legal presumption that<br />
everything that is not expressly stipulated must be governed<br />
by the general provisions applying to property held<br />
jointly by the spouses (articles 183-206 bis of the CCFD).<br />
Section V of article 98 states that an application to marry<br />
must necessarily be accompanied by an agreement made<br />
by the prospective spouses with regard to their assets,<br />
which must clearly state the type of system agreed. Other<br />
legal systems, on the other hand, are much more specific<br />
in that regard.<br />
The second paragraph of article 171 of the Civil Code<br />
of Veracruz states that, when the presumption has been<br />
applied, the rules provided for civil societies or co-ownership<br />
will apply as far as possible. Nevertheless, a recent<br />
reform now requires the simultaneous presence before a<br />
notary of both spouses in an acquisition in order for any<br />
asset to be considered as an indivisible, communal asset.<br />
Furthermore, most federal states in the republic no longer<br />
require the need for judicial authorisation to make<br />
agreements between spouses. Hardly a dozen states still<br />
require permission: Campeche (articles 185 and 186),<br />
Chiapas (articles 171 and 172), Guerrero (articles 432<br />
and 433), Hidalgo (articles 176 and 177), Michoacán (articles<br />
170 and 171), Oaxaca (articles 173, 174 and 175),<br />
Quintana Roo (articles 712, 713 and 714), San Luis Potosí<br />
(articles 159 and 160), Sinaloa (articles 174 and 175),<br />
Tabasco (articles 173, 174 and 175), Tlaxcala (article 58)<br />
and Zacatecas (articles 131 and 132). 5<br />
3.6. Maintenance and alimony<br />
The concept of maintenance contained in Mexican law is<br />
extremely broad. Thus, article 308 states that “Maintenance<br />
consists of food, clothes, housing and treatment in<br />
the event of illness. As far as minors are concerned, maintenance<br />
also includes the necessary costs of primary education<br />
for the person receiving the maintenance and to provide<br />
that person with some honest trade, art or profession<br />
appropriate to his or her sex and personal circumstances”.<br />
In the case of divorce, the general principle established<br />
in article 302 should apply: “The spouses must provide<br />
alimony for each other; the law will determine when this<br />
obligation continues to exist in cases of divorce and other<br />
cases stated in the law itself”.<br />
Article 288 states that in cases of necessary divorce, the<br />
guilty party may be ordered to pay for alimony to the innocent<br />
spouse and even in cases of divorce by mutual<br />
consent, the former wife may receive alimony for the<br />
same length of time as the duration of the marriage,<br />
provided that she does not have sufficient income or does<br />
not find another partner. The former husband has the<br />
same right, but he must prove that he is unable to work<br />
and lacks sufficient income.<br />
3.7. Non-marital joint property (homosexual or heterosexual)<br />
or marriage between homosexuals<br />
3.7.1. Cohabitation without marriage<br />
This has been established, since our civil law attaches<br />
particular importance to the institution of marriage. Proof<br />
of that is the complex solemnity of the requirements for<br />
its celebration (articles 97-113 of the CCFD) and in the<br />
inclusion of basic principles governing the origin and stable<br />
development of the family (4th article of the PCUSM;<br />
articles 162, 163, 164, 168 of the CCFD; article 940 of<br />
the Code of Civil Procedure of the Federal District).<br />
In the philosophical dogma relating to this context, it is<br />
clear that the legislator attaches small importance to other<br />
types of institutions that in some way differ from the<br />
legal formality of the institution of marriage. This is the<br />
case, in fact, with relationships occurring between unmarried<br />
people. What in ordinary language is known as a<br />
“unión libre” (free relationship) is referred to as “concubinato”<br />
(cohabitation) in our civil law.<br />
Nevertheless, from the social point of view, free relationships<br />
are nowadays common either for reasons of mu-<br />
5 FERNANDO ANTONIO CÁRDENAS GONZÁLEZ, „Autorización judicial<br />
para contratar entre cónyuges“ (Judicial authorisation to make<br />
agreements between spouses), in escribano, the official journal of the<br />
ANNM (Mexican Association of Notaries), AC., no. 28, <strong>Mexico</strong>,<br />
2003, page 22.
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