3-4/2005 UINL - Notarius International

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204 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005 - Other titles that the law expressly orders to be registered. 2.4. Contracts with property promoters In Mexico, this type of contract is partially governed by the Ley Federal de Protección al Consumidor (Federal Consumer Protection Law). Articles 73-76 of this law govern transactions involving immovable properties and provide that related acts will only be subject to this law when the party providing the property is a real-estate developer, builder, promoter or other person involved in advising and selling houses to the public that are intended for dwellings or when the consumer is granted the right to use properties through the system of time sharing in accordance with articles 64 and 65 and that such contracts must obligatorily be registered at the Federal Consumer Protection Agency. Also, the contract in question must comply with a number of minimum requirements that are governed in detail in the law (articles 73 bis and 73 ter). 2.5. Property in condominium and surface area occupancy rights Property in condominium is governed in Mexico by a specific law from 1999 named the Ley de Propiedad en Condominio de Inmuebles para el Distrito Federal (LPCI) (Law of Property in Condominium of Immovable Property for the Federal District), which governs its creation, alteration, organisation, functioning, administration and termination. There are three types of condominium according to its structure: vertical, horizontal and mixed. It may be used for housing, commerce or services, industry and mixed use. The creation of the system requires a statement of will in a public deed executed before a notary. The deed creating the system of property in condominium must be entered at the public registry after the relevant fees have been paid. Surface area occupancy rights are not expressly mentioned in the CCFD. 2.6. Restricted real rights on immovable property The real rights enshrined in our legislation are those of ownership, co-ownership, usufruct, use, habitation, easement, pledge and mortgage. The right of ownership is contemplated in articles 830- 937 of the CCFD in relation to the provisions contained in article 27 of the Political Constitution of the United States of Mexico (PCUSM): Land and water within the bounds of Mexican national territory are originally owned by the nation, which had and has the right to transfer ownership of them to private individuals, thus constituting private property. Joint stock companies may own rural land, though only the area that is necessary to fulfil their object. The law containing the regulations on this matter will regulate the capital structure and minimum number of shareholders of these companies so that the land owned by the company does not exceed the limits on pequeña propiedad (small agrarian private ownership parcels) in relation to each shareholder. Likewise, the law will state the conditions for foreign participation in those companies. Another type of restriction relates to the acquisition of rural land by joint stock companies (only to the area that is necessary to fulfil their object) and to the creation of family property (which cannot be alienated and cannot be attached, as stated in the same article 27, section XVII of the PCUSM). With regard to the right of pledge, we must clarify that a recent reform in 2003 amended the General Law on Credit instruments and Transactions, the Commercial Code, the Law on Credit Institutions, the Law on the Securities Market, the General Law on Mutual Insurance Institutions and Companies, the Federal Law on Deposit Institutions and the General Law on Auxiliary Credit Organisations and Activities to allow pledges without transfer of ownership and other types of guarantees, among other things. 3. Family law The legal system relating to the family is included in the Civil Code, except in the cases of the states of Hidalgo and Zacatecas. In fact, these two federal states have separate codes of family law. 3.1. Matrimonial law Some codes define the institution of marriage. These include the civil code of Veracruz, article 75 of which states as follows: “Marriage is a union between one single man and one single woman who live together to carry out the essential purposes of the family as a social and civil institution”. In the case of the CCFD, the institution is not defined and the code only contains the clarification that marriage must take place before the officials established by law and observing the formalities that the law requires. Neither is it common for civil codes to define the concept of the family. Nevertheless, the civil codes of the states of Aguascalientes (747) and Guerrero (article 374), the Family Code of Hidalgo (article 340), the civil codes of Jalisco (article 778), Michoacán (article 120), Querétaro (article 135), Quintana Roo (article 1190), Tamaulipas (article 663) and the Family Code of Zacatecas (3rd article) contain dogma defining the concept. Some civil codes classify marriage as a social and civil institution (Baja California, Hidalgo, Jalisco, Querétaro, Veracruz), whereas others simply state that it is a contract (Federal District, Oaxaca and Puebla). We should point out that article 120 of the Civil Code of Morelos states that, “The Morelian family is a natural grouping...”. 3.2. Celebration of marriage The capacity to enter into matrimony. Civil legislation establishes a minimum age for the bride and bridegroom. The bridegroom must be at least sixteen years of age and the bride must be at least fourteen years of age and this provision coincides in almost all the civil codes in the Mexican republic. The states of Puebla and Jalisco impose the same minimum age on the bride and the bridegroom – sixteen years of age (articles 300 and 260, respectively), while the Federal Code of Hidalgo requires a minimum age of
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 Ta - maulipas (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
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