3-4/2005 UINL - 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 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