3-4/2005 UINL - Notarius International

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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.
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.
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