1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘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?
According to Article 1216 of the Spanish Civil Code, authentic instruments are drawn up by a notary or a competent public office-holder with the formalities provided for by law.
In addition, Article 1218 of the Civil Code, with regard to the probative value of authentic instruments, establishes that they provide full proof, even before third parties, of the act or situation they document and the date on which that documentation took place. They shall also prove to the contracting parties and their heirs the declarations made by the contracting parties.
These are therefore documents issued by notaries when exercising their powers, but also by the courts, and by all public office-holders belonging to the State administration, the Autonomous Communities, the Provinces and municipal administrations.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
See articles of the Civil Code 1216 (definition of “authentic instrument” – drafted by a notary or public employee with the solemnities required by the law) and 1218 (which covers the probative value of the authentic instrument).
Article 317 of the Code of Civil Procedure also covers authentic instruments (resolutions and legal proceedings of all kinds and testimonies issued by legal secretaries; documents authorised by a notary in accordance with the law; certificates issued by land registries and company/commercial registries; those issued by officials who are legally entitled to testify/give evidence as part of carrying out their duties and those which, as far as the archives and registers of State bodies, public administrations or other public legal entities are concerned, are issued by officials entitled to certify the provisions and instruments of these bodies, administrations or entities.)
3. Do all authentic instruments have the same enhanced probative value?
- Article 1218 of the Code Civil “Authentic instruments constitute evidence, effective even against third parties, of the fact which motivates their execution and of the date thereof. They shall also constitute evidence effective against the contracting parties and their successors, as concerns the statements made therein by the former.”
- And Article 319 of the Code of Civil Procedure. Authentic instruments constitute evidence of the fact which motivates their execution, of the date thereof and the identity of the notary and other individuals who have intervened, where applicable.
4. Enhanced probative value concerns
- The date on which the authentic instrument has been drafted.
- The place in which the authentic instrument has been drafted.
- The parties’ signature of the authentic instrument.
- The parties’ declarations.
- Any findings made by the authority within the limits of its competences.
- The measures which the authorities attests it has undertaken.
- The appearance, identification, declarations and consent of the parties.
- The parties’ ability to grant the act.
- How payment will be settled, if applicable.
5. Enhanced probative value can be contested:
Before which authority: Only by the courts
According to which procedure (state the applicable rules): According to Articles 319 and 320 of the Code of Civil Procedure.
Within what timeframe: Until the document’s authenticity has been established by a judgement 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?
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
In Spain, the affidavit is a public document in which two witnesses (and not the notary) solemnly declare the facts to their knowledge regarding a succession: who the heirs are, if the deceased was married or had children or any other descendants, if there are any disputes over the succession. The affidavit constitutes preferred evidence for the declarations contained within it, but it must be understood that the declarations are not made by the notary but by the two witnesses appearing in the instrument and under their sole and exclusive civil and criminal liability, and all in agreement with the evidence provided by the parties.
The absence of a will, the civil status of the deceased and the births or deaths of children or other descendants or heirs are proven by certificates issued by the register of last wishes or civil status registry, where applicable, but the remainder of the data and evidence are provided by the heirs or, where applicable, by witnesses (the knowledge of other heirs’ or descendants’ existence for example).
The notary draws up the affidavit based on the evidence provided by the parties, the declarations of witnesses and the remainder of the documents constituting the instrument.
1. What types of family law instruments exist?
Pre- or post-marriage agreements to establish or change the economic regime ("gananciales" – like the French system of joint ownership of assets acquired during marriage, or separation of assets or profit-sharing).
Acts of marriage or divorce (the latter only in the event that there are no minors involved).
Agreements establishing or amending the economic regime of registered partnerships (PACS).