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All the notes taken during the classes are presented in which all the relevant notes of the subject are developed....

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Paul Jones Natural person Contents

1 Personal status: general considerations 2 Procedural aspects 3 The Law applicable to questions of personal status: general regime 3.1 Material scope of article 9.1 of the CC 3.2 Determination of applicable law 4 Right to name 4.1 General legal regime 4.2 Specific regimes: the incidence of EU law on the regulation of the right to a name 4.3 Right to a name in cases of acquisition of Spanish nationality: particular problems 5 Capacity and protection of the incapable 5.1 Legal capacity and capacity to act 5.2 Modifications to the personal law regarding the capacity to act

5.2.1 Special capabilities 5.2.2 The national interest exception 5.2.3 Protection of adults: legal regime for disability Personal status: general considerations

With the expression "personal status" the set of determining institutions of the legal position that the person occupies in a given society has been designated, from birth (due to nationality, disability or capacity) to the extinction of personality (due to death) . These are issues in which the person is not only involved but is directly affected. This is the idea that designates the notion of "personal status". Etymologically, it refers of course to the "civil status" of the person, which was defined by Professor DE CASTRO as "the legal quality of the person due to their special situation (and consequent membership) in the legal organization, and that, as such, it characterizes their capacity to act and the proper scope of their power and responsibility ”. The content could shed light on the list of the facts that can be registered in the Spanish CR: birth, filiation, name and surname, sex and change of sex, nationality and neighborhood, emancipation, parent-child relations, marriage, separation, nullity and divorce, economic regimes, guardianship and other protection measures, absence and death. These registrable acts and circumstances coincide essentially with the notion of personal status.

Among all the aforementioned circumstances, the condition of national or foreigner is of priority to the DIPr. In addition, the Spanish CR is accessed by the events that affect Spaniards and those referring to foreigners that have taken place in Spanish territory.

Faced with a certain claim, litigious or not, we know that the reasoning scheme to follow will always be the same: before which authorities should the claim be raised, what right to apply and, finally, whether it is a judicial or non-judicial resolution issued outside, how to obtain the effectiveness in Spain of said resolution.

Procedural aspects Most of the personal status problems prioritize judicial and / or administrative intervention.

The rules of international judicial jurisdiction show a specialization process identical to that experienced by the rules relating to the determination of applicable law. We will pay attention only to the international jurisdiction forums corresponding to the problems examined in this topic.

The starting point is article 21.2 of the LOPJ that contains, first, an opening clause to conventional law on the matter. At the present time, the EU Regulations have primacy. The incidence of foreign law is very significant in terms of the protection of minors and elderly people. Thus, the scope of the protection of minors is affected by the 1996 Hague Convention for the protection of minors, as well as by R2201 / 2003 with regard to the same matter. The protection of the elderly has uniform rules of international jurisdiction within the framework of the 2000 Hague Convention on the international protection of adults.

In the absence of a European Convention or Regulation, the internal rules of international judicial competence intervene. To this end, it seems useful to distinguish according to whether the LOPJ assigns jurisdiction to Spanish judicial bodies and Tribunals with an exclusive, general or optional scope.

Thus, the Spanish Courts will know with exclusive scope "in matters of validity or nullity of the inscriptions made in a Spanish Registry" (art. 22.1 LOPJ). An obvious rule for a reason of proximity, but also of competence, since no one like the judge

in charge of the Registry can know of such actions. Therefore, it excludes the jurisdiction of any other national jurisdiction.

Submission to Spanish Jurisdiction is also applicable, whether the parties expressly or tacitly state it (art. 22.2, first paragraph). Taking into account that a good part of the litigious issues that arise in relation to people and personal relationships belong to the scope of voluntary jurisdiction, the autonomy of the will bases, in a good number of cases, the competence of the Spanish Courts.

With special or concurrent scope with respect to other foreign Jurisdictions, the Spanish judicial bodies and Tribunals may become familiar with:

"Regarding the declaration of absence or death when the disappeared person had his last domicile in Spanish territory" (art. 22.3, first paragraph). It is the last domicile in Spain and not the residence that serves as the basis for the jurisdiction of the Spanish Courts; that is to say, a degree of bonding is required more than the mere presence or residence in our country.

This forum fits in with the provisions of Convention No. 10 of the CIEC regarding the verification of certain deaths, made in Athens on September 14, 1996. Said Convention establishes the judicial and administrative authorities that have competence to declare death either because the person He was a national of the State that declared him, either because he had his last domicile or residence there. On the other hand, it offers the advantage that the death registered in the Register of the authority declaring it has full effect in the other contracting States.

"Regarding incapacitation and protection measures for the person and property of minors or disabled persons when they have their habitual residence in Spain" (art. 22.3, second paragraph). This rule of jurisdiction has been practically replaced with regard to the protection of minors and the same will happen in relation to the elderly, from the moment that Spain ratifies the 2001 Hague Convention for the protection of adults. Note that Regarding the criterion for assigning international judicial competence, there is a total symmetry between the LOPJ and the Hague Convention for the protection of adults of 2000. The distance is greater in terms of the material scope of application, as well as due to the complementary procedural mechanisms introduced by the conventional instrument.

Finally, from the perspective of the extraterritorial recognition or effectiveness of foreign judicial and non-judicial decisions, this sector of problems presents certain specificities. It stands out, above all, the non-requirement of exequatur, affirmed by our Supreme Court, because these are decisions that will always fall within the framework of a voluntary jurisdiction process. The central idea is that, since they are declaratory actions, such as those of civil status, the exequatur is not necessary, since the parties only seek the effectiveness in Spain of the constitutive effect or, in general, res judicata. The Law applicable to questions of personal status: general regime The notion of personal status retains what the person is, on the one hand, in their relations with the State (eg national or foreigner status) and in their family relationships (eg filiation), although we will see how not all These relationships are included within the material scope of article 9.1 CC, conflict rule on the matter. On the other hand, when dealing with personal matters, it is the personal law of the interested party that will designate the applicable law. Material scope of article 9.1 of the CC Art. 9.1 CC: "The personal law of individuals is determined by their nationality. Said law will govern the capacity and marital status, family rights and duties and succession due to death. The change of personal law does not it will affect the age of majority acquired in accordance with the previous personal law ".

Article 9.1 CC undergoes a strong process of specialization, so that if we continue reading articles 9 and 10 CC it can be concluded that the following paragraphs only specialize the factual assumption of Article 9.1 CC, providing particular solutions to certain issues pertaining to civil status and family rights and duties. This process of specialization is also caused by the proliferation of special laws.

So that article 9.1 CC, even if it is the general rule, is residual: it will only apply when the problem raised cannot be redirected to any of the other paragraphs of article 9 and to conventional or European law. It should be understood that the scope of this section 1 is practically reduced to aspects related to the marital status and capacity of natural persons. In particular, the facts derived from the birth and the extinction of the personality, the rights of the personality and, among these, the right to a name, capacity and incapacitations fall within its scope. All these issues are subject to personal law, that is, that determined by nationality (art. 9.1), with the modulations that will be seen.

The birth does not raise a conflictual problem except in the moment to retain to assign to that fact legal effects. It is a matter subject to personal law, which may provide a prescription other than the conditions established in the Spanish OJ to consider that there is a person (arts. 29 and 30 CC).

The birth determines the personality and, with it, the recognition of the goods and rights of the personality, immanent or attributes of the personality, for example, the fundamental right to honor or to one's image, or the right to a name. Even when personal law is the governing law of attribution, the violation of such rights will constitute a civil offense (eg, defamation) and, therefore, subject to the right to damages (art. 10.9 CC).

Birth and personality determine ability. The precept refers generically to capacity, although it must be understood that it includes both legal capacity and the capacity to act.

The personality is extinguished by the physical fact of death, or by the declaration of absence and death. The death of the person or the declaration of death extinguishes the personality. The declaration of death raises, on the one hand, the question of international judicial competence in the matter. The competent Spanish judicial authority will have to resolve, in accordance with Spanish law, aspects as relevant as the means of proof by which one or another determining circumstance of the termination of the personality is accredited. The applicable law is the personal law, which will govern the determination of the moment or the solution of the cases of commemoration or pre-hearing, with strong divergences from one legislation to another. In relation to these aspects, in the absence of an ad hoc legal regime,

Along with the normal assumption in which the declaration of death follows the physical fact of death, it may happen that it derives from a judicial procedure, through which a missing person (or absent) is classified as deceased. Both events only produce effects after a judicial declaration, then they require a previous judicial procedure.

When it comes to absence, the problem arises from the uncertainty about the existence of a person. It is not a marital status, nor is it a circumstance that modifies the person's ability. It is, above all, a situation that, while it lasts, requires the adoption of heritage protection measures. Then, in international cases, it raises

two central questions that must be resolved by the Spanish Courts, when the disappeared person had his last domicile in Spanish territory (art. 22.3 LOPJ). First, the adoption of precautionary or provisional measures; Due to their procedural nature and for reasons of practical effectiveness, they may only be adopted in accordance with Spanish law (lex fori). On the other hand, the declaration of absence -the budgets and effects-, It will be subject to the provisions of the national law of the disappeared, since it is a situation that affects all the rights and assets of the person. The absence situation ends with the declaration of death. Determination of applicable law All questions of personal status are subject to personal connections. In the Spanish OJ, personal law is determined by nationality (art. 9.1 CC). Said mandate must be completed with the provisions of section 10 of the same regulation: "the law of the place of habitual residence shall be considered as the personal law of those who lack or have undetermined nationality." So the main connection is the national law and, subsidiarily, the law of habitual residence. Right to name The intense immigration process experienced by Spanish society has placed the issue of the right to a name and surname of the children of foreigners born in Spain at the forefront of importance. Certain decisions of the CJEU have also had an impact as a factor of change. General legal regime The name of natural persons has two facets. It is, on the one hand, a sign of identification of the person (art. 12 CRR) and, therefore, a personality right. At the same time, it must satisfy the general interest in the correct identification of citizens, then it also performs a function of "public control of the identity of the individual". From the first perspective, it is part of the personal statute and explains its submission to personal law. From the second, it justifies an intense state intervention, which in DIPr translates into a certain set of mandatory rules.

In the Spanish OJ, the name and surnames of Spaniards are regulated in articles 109 CC and 55 LRC 1957 and concordant articles of RRC 1958 (arts. 50-56 LRC 2000). Specific regimes: the impact of EU law on the regulation of the right to a name As the free movement of people within the territory of the EU intensifies, additional difficulties arise derived from the exercise of the right to name of citizens. Among others, the following pronouncements of the CJEU are significant:

It is accepted that the right to a name is a matter that falls within the material scope of the TEU.

The CJEU has declared contrary to the principle of non-discrimination and freedom of movement, a national practice (Belgian) by which the authorities tried to prevent the change of the order of the surnames of minor children who held dual nationality (Belgian and Spanish) to that said change could be made in accordance with Spanish law.

The STJCE is relevant in the Grunkin-Paul case, against the refusal of the German RC to recognize the surname with which the son of the Grunkin-Paul marriage, of German nationality, had been registered in Denmark, his place of birth, as it was a compound surname, which was not allowed by German civil law.

Right to a name in cases of acquisition of Spanish nationality: particular problems Spanish law governs the attribution of the name to those who acquire Spanish nationality:

Regardless of the number and order of surnames that appear in the (foreign) certification of affiliation of the interested party, the inscription in the Spanish CR must reflect the first surname of the father and the first of the mother's.

The preservation of the surnames of the previous personal status is admitted, that is, a forced change of the number or order of the surnames that the foreigner had been holding up to the moment of the acquisition of nationality is not imposed, but a conservation mechanism, as long as the interested party so declares, with two public order limitations: one derived from the principle of duplication of surnames, or what is the same, two surnames must appear; another, derived from the principle of the infungibility of the lines or, what is the same, the exclusive transmission of the two surnames by only one of the lines is contrary to our public order.

Capacity and protection of the incapable Reading art. 9.1 CC two characteristics can be inferred. In the first place, the intention of giving the capacity an autonomous and independent treatment of the institutions in which it projects. Second, when referring to capacity, without further ado, it covers both legal capacity and capacity to act. Legal capacity and capacity to act If legal capacity is the ability to be the holder of rights and obligations, birth determines the capacity. The personal law will decide the ways of acquiring the capacity to act (majority and emancipation), as well as the reasons for its loss.

Actually, in the Spanish OJ, minority is the only case of incapacity in the strict sense, due to its autonomous nature and not subject to judicial declaration. The disability that derives from the minority can be tempered by institutions such as

emancipation and the benefit of older age applicable to those subject to parental authority and guardianship, respectively. These are intermediate situations between the youngest and the oldest.

In cases of foreign trafficking -both if it is a matter of establishing protection measures with respect to foreign minors established in Spain and if it is necessary to recognize here the measures that have been adopted abroad-, these and other measures are affected by different international instruments; in particular, by R2201 / 2003 and by the 1996 Hague Convention for the protection of minors.

Modifications to the personal law regarding the capacity to act In relation to the capacity to act, personal law may yield or come modulated in certain cases. In the first place, depending on the nature of the act (special abilities). Second, for the purpose of protecting traffic safety (national interest theory). Finally, when the person's incapacity situation requires the adoption of protective measures, with or without prior judicial declaration.

Special capabilities Within the capacity to act it is necessary to identify certain special capacities. Most of the OJ establish capacities, different from the one generally envisaged for the performance of certain legal acts (eg, marry, adopt and be adopted). The nationality connection is reiterated or modulated depending on the act to be performed; These are the so-called special capacities that are studied in the subjects corresponding to such institutions.

The national interest exception A restriction on the application of personal law reveals the distance between the right of the person as such and that of his patrimonial interests. It crystallizes in the so-called national interest exception (art. 10.8 CC), which prevents disability, established in accordance with personal law, but not recognized by Spanish law, from invalidating onerous contracts concluded in Spain. Thus, the connection between national law, as the governing law of capacity, is tempered by the locus rule in the performance of certain legal acts. Spanish legislation collected it for the first time in the reform of the Preliminary Title of the CC of 1974, in article 10, paragraph 8.

The principle of national interest advocates the priority of the law of the place of celebration of an act over the foreign personal law of one of the parties, to decide on the capacity to validly conclude it. No more causes of disability than those provided by Spanish law as the law of the place where the contract is entered Its reason for being has to be sought, then, in the protection of legal traffic.

Protection of adults: legal regime for disability Incapacitation means the loss of the ability to act for certain reasons. In principle, the reasons for loss of capacity, the legal representation of the subject who does not have the flat capacity to act and the effects of disability are subject to personal law. Assuming the full capacity to act of those of legal age, the establishment of limitations to said capacity requires a judicia...