1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
Article 224 of the Contentious Civil Procedure Act gives the definition of an authentic instrument (see answer to question 2.). Under Notaries Act, notarial instruments are notarial deeds, notarial minutes and notarial certificates. Notarial instruments are considered authentic instruments, provided that all the essential formalities required by this Act have been observed in their drafting.
Certain other documents could fall within the scope of the definition as well, when prescribed so by the law – e.g. The General Administrative Procedure Act , Art. 169.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
It is defined by the Notaries Act (Article 3) that Notarial instruments and engrossed copies are considered authentic instruments, provided that all the essential formalities required by this Act have been observed in their drafting. All notarial instruments are authentic instruments.
The Slovenian Civil Procedure Act (ZPP) stipulates in Art. 224 as follows:
A document in a physical and electronic form, which is issued in the prescribed form by a national authority within the limits of its competence, and the document issued in that form by an autonomous local community, company and any other organisation or individual in exercising its/his/her public authority entrusted by law (authentic instrument) demonstrates the authenticity of what is confirmed or defined therein.
The same probative force also lies on other documents which are equalised with authentic instruments in regard to the probative force according to special regulations.
The General Administrative Procedure Act (Zakon o splošnem upravnem postopku) :
“ Art. 169 : The document which is in the prescribed form issued by a national authority, an organ of autonomous local community or by a holder of public powers within the limits of its competence demonstrates what is confirmed or specified therein (authentic instrument). The same probative force also lies on other documents which are equalised with authentic instruments according to special regulations.”*
*Translated from Slovenian by the authors of this information website.
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns:
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
5. Enhanced probative value can be contested:
Before which authority: The court
According to which procedure (state the applicable rules): According to Articles 224 to 228 of the Code of Civil Procedure (Zakon o pravdnem postopku).
Within what timeframe: Until the authenticity of document is established by a judgment which acquires the authority of res judicata.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
In the Republic of Slovenia, the courts have the exclusive competence in succession matters and there are no other authorities or legal specialists within the meaning of Art. 3(2) of that Regulation who would be responsible for succession matters and would exercise the judicial function or operate on the basis of Powers of Attorney transferred upon them by a judicial body and/or under the supervision of a judicial body.
Slovenian notaries do not exercise a judicial function and they are also not in the role of authorised representatives of courts. But they do draw up authentic instruments which comply with definitions according to the Regulation and which belong to the field of succession.
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
1. What types of family law instruments exist?
- agreement for a division of matrimonial assets (while the marriage still exists or for a divorce by mutual consent)
- agreement for a spousal support of the unemployed spouse in the event of a divorce
- agreement on maintenance for a child of full age
- agreement on maintenance that a child of full age has to pay to parents
After a new Family Code becomes effective (after 15 April 2019), the following shall also apply:
- no-fault divorce at the notary (spouses without children or with adult children)
- wedding contracts, which will be in the form of a notarial deed