National Report Mexico - Notarius International

Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 207
tual conviction – deriving from a different approach to life
– or for reasons imposed by present-day social and financial
realities. In the light of this, the legislator has been
obliged to deal with the problem in one way or another.
Most of the civil legal systems in the Republic do not
legally acknowledge the possibility of cohabitation.
However, although they do not specifically acknowledge
the concept, these legal systems nevertheless allow the
legal regulation of certain of their consequences.
Nevertheless, many reforms on this aspect have been
incorporated into the CCFD and there is even a special
chapter on the concept (chapter XI, Cohabitation, articles
291 bis to 291 quintus). This code contemplates rights of
succession (article 1368, V), maintenance (article 291
quáter), cases of domestic violence (323 quintus), impediments
due to kinship by marriage (294), the possibility
of adoption (391), creation of family property (article
724) and even presumptions of law on filiation (383).
In the rest of the Republic, the civil codes of the states
of Baja California Sur, Guerrero and the Federal Code of
Hidalgo state that cohabitation is the source of the obligation
to provide alimony and the civil codes of Tabasco,
Tlaxcala and the Federal Code of Zacatecas establish
equality between spouses and cohabitants with regard to
this obligation.
Some federal states establish other requirements for
this obligation to provide alimony to exist: the CCFD requires
five years' cohabitation, that there must have been
children and that neither of the cohabitants have married
a third party. The obligation is invalid if there is more
than one cohabitant (the civil codes of Chihuahua, Morelos,
Sonora and Yucatán coincide on this point). Articles
241 and 242 section II of the Federal Code of Zacatecas
also require that the union should have lasted more than
five years. Nevertheless, the Civil Code of Chiapas states
that cohabitation must have taken place for only three
years, that the beneficiary has an honest lifestyle and that
both cohabitants have remained unmarried. It also specifies
that if the male is disabled and has no assets for his
subsistence, he may receive alimony from the female.
The civil codes of Tamaulipas and Veracruz coincide in
the requirement that the cohabitants should have lived together
as a couple for only three years – or less if there
are any children -, provided that they do not marry a third
party. The Civil Code of Querétaro states that the obligation
to provide alimony continues to exist throughout the
duration of the cohabitation and may even be prolonged,
when cohabitation has ended, for a period equal to its duration,
provided that the person receiving alimony has no
other partner and lives honestly.
3.7.2. Homosexual couples
The laws of Mexico do not recognise homosexual couples.
3.8. Children
Representation of children by their parents. In Mexico,
children are subject to parental authority up to the
age of 18. The parents, in fact, are the minor's legitimate
representatives and possess the legal right to manage
their assets and represent the children in court. However,
they can only alienate or encumber immovable property
and valuables in cases of absolute need or clear benefit
and with the prior authorisation of the judge (articles 425-
442). Such permission is processed in voluntary jurisdiction
proceedings.
To date, very few civil codes in the Republic contain
specific titles or provisions relating to childhood or minority,
although the following civil codes do contain such
provisions: Guerrero (article 35), Jalisco (article 567 et
seqq.), Quintana Roo (article 984 et seqq.), Tabasco (article
404 et seqq.) and Tlaxcala (article 247 et seqq.).
At the federal level there is a Ley para la Protección de
los Derechos de Niñas, Niños y Adolescentes (Law for
the Protection of the Rights of Girls, Boys and Adolescents)
that was passed by President Zedillo in 1999. Zacatecas,
the Federal District and Veracruz also have specific
laws on these matters.
3.9. Power to provide for one's own disability
This concept does not yet exist in Mexico, although
certain excellent case-law studies have been carried out
on this matter.
4. Law of succession
4.1. General observations
In our country there are two types of succession: testate
and intestate. The first type derives from the making of a
will (an act that the law describes as highly personal, revocable
and free). The second type occurs precisely in the
absence of a last will and testament. The act of making a
will is individual and therefore joint or reciprocal wills
are not permitted. There are two ways to inherit: universally,
in the capacity of heir, and privately in the capacity
of legatee.
4.2. Legal succession
In accordance with the provisions contained in article
1599 of the CCFD, legal inheritance occurs precisely in
the following circumstances:
- When there is no will or the will that was made is void
or has become invalid;
- When the testator did not dispose of all his assets;
- When the condition imposed on the heir is not fulfilled;
and
- When the heir dies before the testator, repudiates the
inheritance or lacks capacity to inherit, if no substitute
has been appointed.
The moment when the estate is shared must go back to
the decease of the author of the will. For that reason, the
concept known in other legal systems as trust estate does
not exist in our legal system. In fact, article 1649 of the
CCFD provides as follows: “Succession occurs at the
moment of decease of the principal of the estate...”, while
article 1660 provides as follows: “The effects of acceptance
or repudiation of the estate are always backdated to
the date of the decease of the person from whom the estate
is inherited”. These provisions are repeated in article
1290 relating to the case of legatees.