Private international law

Rels24
Prof. Manuel DESANTES REAL

LESSON 07: Physical (natural) persons

I. Personal Status
II. Capacity
III. Civil Status
IV. Personality rights

………

I. Personal Status: Nationality (N) as a connecting

factor for the conflict of laws’ rule

1. Notion of personal status

Set of legal matters closely relating to the concept of natural (physical) person. It
provides coherence and homogeneity to all matters related to a person.

2. Scope of application. Normative dispersion as to the applicable

law = Crisis of the “personal law” = Crisis of the N as connecting
factor

1) Capacity and civil status: Art. 9.1 Spanish Civil Code (SCC): law of the nationality
of the person (other countries like UK, Denmark: Domicile)

- Legal capacity: Personality rights (beginning and extinguishment or

extinction of the personality, right to a person’s name)
- Capacity to act: ej. Minors in principle do not have it
1
 - Civil status: ej. Majority of age, emancipation, gender, marriage

Domestic sources (neither EU nor international sources, with some exceptions.

See II. Capacity)

a. From 1889 to 1974

Art. 9 SCC (1889 text):

“The laws relating to family rights and duties, or to the status, condition
and legal capacity of persons, are binding on Spaniards, even if they reside
abroad”.

Art 22 SCC (1889 text)

“The married women follows the status and nationality of her husband ”

b. After 1974 (Decree 1836/1974, of May 31, which sanctions with force of law
the consolidated text of the preliminary title of the Civil Code according to
Law 3/1973, of 17 March)

Art 9.1 SCC:

“The personal law applicable to an individual shall be determined by his

nationality. Such law shall govern capacity and civil status, family rights
and duties and mortis causa succession.
The change of the personal law shall not affect the coming of age acquired
in accordance with the former personal law”.

See arts 17-28 SCC below (acquisition of nationality)

2) Personal effects of marriage: Art 9.2.I SCC and Reg. :

a. From 1889 to 1974 (see Capacity and civil status)

b. From 1974 to 1990

Art. 9.2 SCC

2
 “Personal relations between the spouses shall be governed by their last
common national law during the marriage and, failing that, by the national
law of the husband at the time of the celebration”

Art 22 SCC (1889 text)

“The married women follows the status and nationality of her husband ”

c. But Spanish Constitution (SC) 1978

Art. 14 SC:

“Spaniards are equal before the law and may not in any way be discriminated
against on account of birth, race, sex, religion, opinion or any other personal
or social condition or circumstance”

Art. 10(2) SC:

“Provisions relating to the fundamental rights and liberties recognized by the

Constitution shall be construed in conformity with the Universal Declaration
of Human Rights and international treaties and agreements thereon ratified
by Spain”.

Universal Declaration of Human Rights (10 December 1948) Art. 2:

“Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status”.

European Convention on Human Rights (4 November 1950) Art. 14:

“The enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status ”.

Consequences:
- Art. 9.2 SCC is contrary to SC, so not applicable any more

3
 - No discrimination for reasons of sex applies to every human being, not only
to spaniards

d. After 1990 (Law 11/1990, of 15 October): Art. 9.2.I SCC: Cascade

i. Common N law at the time of marriage,

ii. Law chosen (N or Habitual Residence (HR) of any of them) in authentic
document issued before the marriage,
iii. Law of common HR right after marriage,
iv. Law of the place of the celebration of the marriage

“The effects of marriage shall be governed by the personal law common

to the spouses at the time of the marriage; in the absence thereof, by the
personal law or the law of the place of residence of any of them, chosen
by both in an authentic instrument executed prior to the marriage
ceremony; in the absence of such election, by the law of the place of
habitual residence common to both immediately after the ceremony and,
in the absence of such residence, by that of the place of the marriage
ceremony”.

e. After Council Regulation (EU) 2016/1103 of 24 June 2016 implementing

enhanced cooperation in the area of jurisdiction, applicable law and the
recognition and enforcement of decisions in matters of matrimonial property
regimes (applicable from 29 January 2019 in the member states which
participate in the enhanced cooperation)

1) Choice of applicable law: limited to (art 22-23-24)

(a) the law of the State where the spouses or future spouses, or one
of them, is habitually resident at the time the agreement is
concluded; or
(b) the law of a State of nationality of either spouse or future
spouse at the time the agreement is concluded.
2) If not choice of law (art 26)
(a) of the spouses' first common habitual residence after the
conclusion of the marriage; or, failing that
(b) of the spouses' common nationality at the time of the conclusion
of the marriage; or, failing that
(c) with which the spouses jointly have the closest connection at the
time of the conclusion of the marriage, taking into account all the
circumstances.
4
 3) Exception (art 26.3) in case the first common HR is accidental: last
common habitual residence if two conditions are met:
a) the spouses had their last common habitual residence in that other
State for a significantly longer period of time than in the State
designated pursuant to point (a) of paragraph 1; and
b) both spouses had relied on the law of that other State in arranging
or planning their property relations.

3) Patrimonial effects of marriage and property regime:

a. From 1889 to 1974 (see Capacity and civil status)

b. From 1974 to 1990

Art. 9.3 SCC

“Property relations between the spouses, in the absence or insufficiency

of marriage contracts permitted by the law of either of them, shall be
governed by the same law as personal relations. A change of nationality
shall not alter the matrimonial property regime, unless the spouses so
agree and their new national law does not prevent it ”.

Art 22 SCC (1889 text)

“The married women follows the status and nationality of her husband ”

c. From 1990 to Now (Law 11/1990, of 15 October):

Art. 9.2.I SCC:

“The effects of marriage shall be governed by the personal law common

to the spouses at the time of the marriage; in the absence thereof, by the
personal law or the law of the place of residence of any of them, chosen
by both in an authentic instrument executed prior to the marriage
ceremony; in the absence of such election, by the law of the place of
habitual residence common to both immediately after the ceremony and,
in the absence of such residence, by that of the place of the marriage
ceremony”.

5
 Art 9.3 SCC: Covenants or marriage articles stipulating, amending or
replacing the property regime of the marriage (law chosen by the parties)

“Covenants or marriage articles stipulating, amending or replacing the

property regime of the marriage shall be valid when they are in accordance
with either the law governing the effects of the marriage, or the law of the
nationality or habitual residence of either party at the time of execution
thereof”.

d. After Council Regulation (EU) 2016/1103 of 24 June 2016 implementing

enhanced cooperation in the area of jurisdiction, applicable law and the
recognition and nforcement of decisions in matters of matrimonial property
regimes (applicable from 29 January 2019 in the member states which
oparticipate in the enhanced cooperation)

See Personal effects of marriage

e. After Council Regulation (EU) 2016/1104 of 24 June 2016 implementing

enhanced cooperation in the area of jurisdiction, applicable law and the
recognition and enforcement of decisions in matters of the property
consequences of registered partnerships (applicable from 29 January 2019 in
the member states which participate in the enhanced cooperation)

See Reg 2016/1103

4) Nullity of marriage: Art 107 SCC: Law of the celebration of the marriage.

Art. 107.1 Cc: “The nullity of the marriage and its effects shall be determined in
accordance with the law applicable to its performance (celebration)”.

5) Separation and divorce: Art 9.2.II SCC refers to art 107 SCC, which refers to the
EU PIL norms (double reference).

- Art. 9.2.II SCC: “Legal separation and divorce shall be governed by the law
provided in article 107”

- Article 107 SCC:

6
o Law 30/1981, of 7 July Law 30/1981, of July 7, which modifies the
regulation of marriage in the Civil Code and determines the procedure to be
followed in cases of annulment, separation and divorce.

“Separation and divorce shall be governed by the common national

law of the spouses at the time of filing the petition; in the absence of
common nationality, by the law of the habitual residence of the
marriage and, if the spouses have their habitual residence in different
States, by Spanish law, provided that the Spanish Courts are
competent”.

o Organic Law 11/2003, of September 29, on specific measures regarding

citizen security, domestic violence and social integration of foreigners.

“Separation and divorce shall be governed by the common national

law of the spouses at the time of the filing of the application; in the
absence of common nationality, by the law of the common habitual
residence of the marriage at that time and, in the absence of this, by
the law of the last common habitual residence of the marriage if one
of the spouses still habitually resides in that State.

In any case, Spanish law shall apply when one of the spouses is
Spanish or habitually resides in Spain:

a) If none of the aforementioned laws is applicable.

b) If in the application filed before a Spanish court, separation or
divorce is requested by both spouses or by one with the consent of
the other.
c) If the laws indicated in the first paragraph of this section do not
recognize separation or divorce or do so in a discriminatory manner
or contrary to public order"

o Law 15/2015, of 2 July on Voluntary Jurisdiction (non contentious

proceedings)

“The legal separation and the divorce will be ruled by the EU or Spanish
Private international law rules”

Consequence: There is no domestic conflict of laws rule in this matter

7
 - EU Private international law: Regulation 1259/2010 of 20 December 2010, Rome
Regulation 3 or RR3): cascade (arts. 5, 8 and 10)
o law chosen by the parties;
o if not, law of the common HR at the time the courts is seized;
o if not, law of the last common HR if less than one year and one of the
spouses still resides there;
o if not, lex fori.

6) Filation by nature. Art 9.4.I SCC: Establishment and character:

a. Before 1974

Art. 9 SCC (1889 text):

“The laws relating to family rights and duties, or to the status, condition
and legal capacity of persons, are binding on Spaniards, even if they reside
abroad”.

b. From 1974 to

Art. 9.4 SCC:

“Las relaciones paterno-filiales se regirán por la ley nacional del padre y

en defecto de éste, o si sólo hubiere sido reconocida o declarada la
maternidad, por la de la madre”.

c. Before : N

“The nature and content of filiation, including filition by adoption, and the
relations between parents and their children, shall be governed by the
personal law of the child, and if this cannot be determined, the law of his
habitual residence”

d. Before 1987: N (Law 21/1987, of 11 November)

“The nature and content of filiation, including filition by adoption, and the
relations between parents and their children, shall be governed by the
personal law of the child”

e. Now: HR child and cascade (Law 26/2015, of 28 July)

8
 “The nature and content of filiation per nature shall be governed by the
law of the habitual residence of the son/daughter (offspring) at the
moment of the establishment of the filiation. In the absence of the habitual
residence of the son/daughter (offspring), or if this law does not allow the
establishment of the filiation, the national law of the son/daughter
(offspring) at that time will be applied. If this law does not allow the
establishment of filiation or if the son/daughter(offspring) has neither
habitual residence nor nationality, Spanish substantive law will apply. With
regard to the establishment of filiation by adoption, the provisions of
section 5 shall apply”.

7) Filiation by adoption: Arts.9.4.I refers to Art 9.5 and 9.5 refers to International
Adoption Law: Establishment and character of filiation by adoption, and effects in
Spain of adoptions constituted abroad

- Art. 9.4.I SCC: “… With regard to the establishment of filiation by adoption, the
provisions of section 5 shall apply”
- Art. 9.5 SCC: ”International adoption shall be governed by the provisions of the
Intercountry Adoption law. Likewise, adoptions decreed by foreign authorities
shall be effective in Spain in accordance with the provisions of the
aforementioned Intercountry Adoption law”
- Spanish Act 54/2007 on intercountry adoption (SAIA), as severely modified by
Law 26/2015 modifying the system of protection for childhood and adolescence,
should be applicable in case of absence of EU Law and International
Conventions: Spanish law applies if certain requirements are met.

8) Contents of filiation and exercise of parental responsibility

Art 9.4.II SCC refers to The Hague Convention 19 October 1996 on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children: habitual residence of
the child

“The law applicable to the content of filiation, by nature or by adoption, and

to the exercise of parental responsibility, shall be determined in accordance
with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable
law, Recognition, Enforcement and Cooperation in respect to parental
responsibility and measures for the protection of children ”.

9
9) Protection of minors

Art 9.6.I SCC refers to the abovementioned Hague Convention 19 October 1996:
habitual residence of the child

“The law applicable to the protection of minors shall be determined in

accordance with the Hague Convention of 19 October 1996 referred to in
paragraph 4 of this article”

10) Protection of majors: Art 9.6.II SCC

A. Art. 9 SCC (1889 text):

“The laws relating to family rights and duties, or to the status, condition and
legal capacity of persons, are binding on Spaniards, even if they reside
abroad”.

B. Art. 9.6.II SCC (Before 2015: Law 26/2015, of 28 July)

“The law applicable to the protection of aged persons (the eldery) will be
determined by the law of their habitual residence. In the case of change of
residence to another State, the law of the new habitual residence will be
applied, without prejudice to the recognition in Spain of the protection
measures agreed in other States. However, Spanish law will apply to the
adoption of provisional or urgente protection measures ”.

C. Art. 9.6.II SCC: Now (From 2021: Law 8/2021, of 2 June)

No specific reference to the protection of the eldery any more

11) Support to persons with disabilities

Art. 9.6.II SCC: New from 2021: Law 8/2021, of 2 June

“The law applicable to support measures for persons with disabilities will be
that of their habitual residence. In the event of a change of residence to
another State, the law of the new habitual residence will apply, without
prejudice to the recognition in Spain of support measures agreed in other
States. However, Spanish law will apply to the adoption of provisional or
urgente protection measures”.
10
12) Maintenance obligations amongst relatives: Art 9.7 refers to The Hague
Protocol of 23 November 2007: habitual residence of the creditor

“The law applicable to maintenance obligations between relatives shall be

determined in accordance with The Hague Protocol of 23 November 2007 on
the law applicable to maintenance obligations or the legal text that replaces it ”

13) Successions mortis causae:

a) Before application of Regulation (EU) 650/2012: art 9.8 SCC: nationality

“Succession mortis causae shall be governed by the national law of the

deceased at the time of his/her death, whatever the nature of the assets and the
country where they are located. However, testamentary provisions and
covenants relating to future succession ordered in accordance with the national
law of the testaror or the disposer at the time of of its execution will retain their
validity, even if the law that governs the succession is different, although the
legitimate ones will be adjusted, in his case, to the latter. The rights attributed
by operation of law to the surviving spouse will be governed by the same law
that governs the effects of the marriage, respecting at all times the legitimate
rights of the descendants”.
b) After application of Regulation (EU) 650/2012: habitual residence

From 17 August 2015, Regulation (EU) No 650/2012 of the European Parliament

and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and
enforcement of decisions and acceptance and enforcement of authentic
instruments in matters of succession and on the creation of a European
Certificate of Succession (here) covers most of the cases because it has universal
application, and establich the habitual residence of the deceased as the general
connecting factor.

Conclusion: what is the scope of art 9.1 SCC, that is to say, the scope of the N as
connecting factor in the conflict of laws rule? Narrow approach: Capacity, civil status
and some personality rights

3. Positive and negative conflicts of N

11
See arts 17-28 SCC below (Spanish legislation regarding acquisition of nationality)

A. Positive conflicts: dual N and several Ns

Art 11 Spanish Constitution (SC):

1. Spanish nationality is acquired, retained and lost in accordance with the

provisions of the law.
2. No person of Spanish origin may be deprived of his or her nationality.
3. The State may negotiate dual nationality treaties with iberoamerican
countries or with those which have had or which have special links with Spain.
In these countries, Spaniards may become naturalised without losing their
nationality of origin, even if said countries do not recognise a reciprocal right
to their own citizens”.

Art 24.1, 2nd par. SCC:

“Acquisition of the nationality of iberoamerican countries, Andorra, the

Philippines, Equatorial Guinea or Portugal shall not be sufficient to cause the
loss of Spanish nationality by birth”.

Art 9.9 Spanish Civil Code (SCC):

“For the purposes of the present chapter, the provisions of the international
treaties shall apply to situations of dual nationality provided under Spanish
law, and, in the absence of such provisions, the nationality of the last place of
habitual residence and, in the absence thereof, the last nationality acquired
shall be preferred.

In any event, Spanish nationality shall prevail for persons who also hold
another nationality that is not provided for in Spanish statutes or international
treaties. If such person should hold two or more nationalities, and none should
be Spanish, the provisions of the following section (art. 9.10 SCC) shall apply”.

Art 9.10 SCC:

“The law of the place of habitual residence shall be deemed to be the personal
law of persons without nationality or with indeterminate nationality”.

12
Notes:

• For the purposes of the Private international law system, only one N is possible
= Art 9.9 SCC. Reason: in order to correctly apply art 9.1 SCC the connecting
factor should be only one.
• For other legal effects, it is possible to have several Ns
• EU Member States (MS) should respect the decisions of other MS as to the
attribution of N ( (ECJ 7 July 1992 (C-369/90), Micheletti)

1. Persons enjoying dual N or citizenship (if one of them is Spanish nationality)

a. Bilateral agreement = Art 9.9.I SCC: Principle of “Effective nationality”:

specific solution in the agreement
i. Persons with dual N with Domicile (D) in a contracting State:
1. N coinciding with the last D (Chile, Perú, Guatemala, Nicaragua,
Bolivia, Honduras).
2. Last N acquired (Colombia, Argentina, Paraguay, Ecuador, Costa
Rica, Dominican Republic)
ii. Persons with dual N with D in a third State:
1. Last D in a contracting State (Chile, Nicaragua, Guatemala, Bolivia,
Honduras, Argentina, Colombia)
2. Last N acquired (Ecuador, Dominican Republic)
3. Last HR; if not, last N (Paraguay, Costa Rica)
iii. Dual nationality agreement Spain-France15 March 2021: text in
Spanish here, Instruction of 31 March 2022 here, news here.

b. Art. 11.3 SC + Art 9.9.I SCC: N of the last HR; if not, the last N acquired

2. Persons holding several nationalities (if one of them is Spanish nationality): Spanish
N prevails (art 9.9.II SCC)

Example: Spanish N + Italian N = Art 9.9.II SCC: Spanish N prevails (for the
purposes of application of the N as a connecting factor in the conflict of laws
rule)

3. Persons holding several nationalities (if none of them is Spanish nationality):

application of the law of the HR (art. 9.9.II + art 9.10 SCC)

13
 Example: German N + French N + Italian HR = Art 9.9.II and 9.10 SCC: HR =
Italian (for the purposes of application of the N as a connecting factor in the
conflict of laws rule)

B. Negative conflicts:

1. Undeterminated N: Art 9.10 SCC = Law of HR is the law applicable to persons

without N or with indeterminate N

Art 9.10 SCC: “The law of the place of habitual residence shall be deemed to
be the personal law of persons without nationality or with non-determinated
nationality”.

2. Stateless:

a. Art 9.10 SCC = Law of HR is the law applicable to persons without N or with
indeterminate N

Art 9.10 SCC: “The law of the place of habitual residence shall be deemed
to be the personal law of persons without nationality or with non-
determinated nationality”.

b. But Spain has ratified the New York Convention 1954 relating to the Status
of Stateless Persons - The convention prevails

Art 12: Personal status

“1. The personal status of a stateless person shall be governed by the
law of the country of his domicile or, if he has no domicile, by the law of
the country of his residence.
2. Rights previously acquired by a stateless person and dependent on
personal status, more particularly rights attaching to marriage, shall be
respected by a Contracting State, subject to compliance, if this be
necessary, with the formalities required by the law of that State, provided
that the right in question is one which would have been recognized by
the law of that State had he not become stateless”.

3. Refugees: New York Convention and Protocol 1954 relating to the Status of
Refugees

Art 12: Personal status

14
 “1. The personal status of a refugee shall be governed by the law of the
country of his domicile or, if he has no domicile, by the law of the
country of his residence.
2. Rights previously acquired by a refugee and dependent on personal
status, more particularly rights attaching to marriage, shall be respected
by a Contracting State, subject to compliance, if this be necessary, with
the formalities required by the law of that State, provided that the right
in question is one which would have been recognized by the law of that
State had he not become a refugee”.

Law of the N is not applicable because it could harm refugees.

4. Mobile conflict

In case of change of N: N at the time of of the performance of the act or the

establishment of the legal relationship = Art 9.1 in fine SCC

Art 9.1 SCC: “The personal law applicable to an individual shall be determined by
his nationality. Such law shall govern capacity and civil status, family rights and
duties and mortis causa succession. A change in personal law shall not affect the
coming of age acquired in accordance with the former personal law”.

5. Relevance of the recognition of foreign decisions

Ex. Grunkin-Paul (see Name)

Regulation (EU) 2016/1191 of the European Parliament and of the Council 0f 6 July
2016 on promoting the free movement of citizens by simplifying the requirements
for presenting certain public documents in the European Union and amending
Regulation (EU) No 1024/2012

• It applies from 16 February 2019

• It is used to accreditate birth, proof of life (of being alive), death, name, domicile,
nationality, absence of criminal records, etc.

15
II. Capacity

1. Legal capacity (ability) = Civil personality

A. Notion, jurisdiction and applicable law

o Notion: ability to be an active and passive subject of legal relationships

o Jurisdiction:

Art 22 ter Spanish Law of the Judiciary (SOLJ): domicile of the defendant
in Spain

Art 22 quáter.b SOLJ: “Spanish courts will have jurisdiction: b) In matters

related to the capacity of persons or to the protection measures for aged
persons, when they have their habitual residence in Spain”

o Applicable law: Art 9.1 SCC = law of the N

o Consequences:

o N law (as a personal law) determines the beginning and the

extinguishment of the personality when Spanish courts have jurisdiction
o Civil personality = Capacity

B. Beginning of the civil personality

Art 9.1 SCC applies

- Legal orders differ all over the world as to the beginning of the personality (ex.
Spain and Germany: born alive, see arts 29 and 30 SCC; France: born alive being
viable)

Art. 30 SCC:

1. Until Law 20/2011, of 21 July

16
 “For civil purposes, only a fetus that has a human form and lives for
twenty-four hours completely separated from the mother's womb will
be considered born”.

2. After 2011 (and today)

“Personality is acquired at the moment of live birth, once the entire

detachment from the maternal womb has occurred”.

- Problem: is French law against Spanish international public policy?

- Problem: rights of “potential persons” or nasciturus (ej. embryos): No answer.

Possible solutions:

• Law of the country whose nationality the person had held if he/she) would
have attained the status of person (N of the hypothetical person)
• Dispersion of the applicable law (ex. law applicable to succession for
succession rights, law applicable to maintenance obligations for
maintenance, etc.)
• Lex fori (for practical reasons)

C. Extinguishment of the civil personality by death. Commorience

1) Extinguishment of personality by death: Art 9.1 SCC applies + art 9.8 SCC (but
Reg 650/2012 prevails).

Art. 32 SCC: “Civil personality is extinguished by the death of persons”.

2) Conmorience: issues related to simultaneous death (commorience) =

Succession law applies to the determination of the death

Regulation 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition

and enforcement of decisions and acceptance and enforcement of authentic
instruments in matters of succession and on the creation of a European
Certificate of Succession

Article 32 Reg 650/2012: Commorientes

17
 “Where two or more persons whose successions are governed by different
laws die in circumstances in which it is uncertain in what order their deaths
occurred, and where those laws provide differently for that situation or
make no provision for it at all, none of the deceased persons shall have
any rights to the succession of the other or others”.

Requirements (Box):
i. Two or more persons (= with legal personality)
ii. Whose successions are governed by different laws
iii. Those laws provide differently for that situation or make no provision
for it at all
iv. Die in circumstances in which it is uncertain in what order their deaths
occurred

See also art 33 SCC (same answer as 32 Reg 650/2012):

“If there is doubt, between two or more people called to succeed each
other, who of them has died first, the one who sustains the previous death
of one or the other must prove it; in the absence of proof, they are
presumed dead at the same time and the transfer of rights from one to
another does not take place ”

D. Declaration of death

1. Notion: through a non-contentious jurisdiction proceeding, a person is declared

death.

See Council or Europe, 9 December 2009: Principles concerning missing persons

and the presumption of death (Recommendation CM/Rec(2009)12 and
explanatory memorandum), here

2. Jurisdiction:

i. Cases covered by the Convention 10 ICCS (International Commission on Civil

Status) relating to the establishment of death in certain cases (Athens, 14
September 1966) – Spanish text

18
 Article 1
“Where the body of a missing person cannot be found but in the light of all
the circumstances it may be taken as certain that he or she is dead, the
judicial authority or an administrative authority empowered for the purpose
shall be competent to declare that person dead:
- if he or she was reported missing in the territory of the State to which that
authority belongs or during a voyage of a vessel or an aircraft registered in
that State,
- or if he or she was a national of that State or was domiciled or resident in
its territory”.

Article 2
“In cases where death is certain and occurred outside the territory of the
Contracting States, the judicial authority or an administrative authority
empowered for the purpose shall, if no certificate has been drawn up or
can be produced, be competent to declare the person dead:
- if the death occurred during a voyage of a vessel or an aircraft
registered in the State to which that authority belongs,
- or if the deceased was a national of that State or was domiciled or
resident in its territory”.

Article 5
“This Convention shall not preclude the application of provisions making
it easier to establish death”.

ii. Other possible cases

Art 22 quáter.a) SOLJ (Spanish Organic Law on the Judiciary)

“En materia de declaración de ausencia o fallecimiento, cuando el

desaparecido hubiera tenido su último domicilio en territorio español o
tuviera nacionalidad española”

“In matters of declaration of absence or death, when the disappeared

person had his / her last domicile in Spanish territory or had Spanish
nationality

19
 Art 22 octies.3.II SOLJ: forum necessitatis

“Los Tribunales españoles no podrán abstenerse o declinar su

competencia cuando el supuesto litigioso presente vinculación con España
y los Tribunales de los distintos Estados conectados con el supuesto hayan
declinado su competencia”

“The Spanish Courts may not refrain or decline their jurisdiction when
the alleged litigation is linked to Spain and the Courts of the different
States connected to the case have declined their jurisdiction”

3. Applicable law

Distinction:
• Declaration of death: art 9.1 SCC
• Consequences of such a declaration: normative dispersion: lex causae (ex. in
order to know whether the declaration of death provokes the dissolution of
marriage or the opening of the succession, the law applicable to each institution
applies)

E. Declaration of absence

1. Notion: through a non-contentious jurisdiction proceeding, a person is declared

absent in order to protect their assets and the interests of third parties. It is a legal
situation which requests usually provisional measures

2. Jurisdiction
Art 22 quáter.a) SOLJ (Spanish Organic Law on the Judiciary): if last D of the
abstent was in Spain, or if the absent had Spanish N

“In matters of declaration of absence or death, when the disappeared

person had his / her last domicile in Spanish territory or had Spanish
nationality

3. Applicable law
• Declaration of absence: Art 9.1 SCC
20
 • Consequences of such a declaration: normative dispersion: lex causae (ex. in
order to know whether the declaration of death provokes the dissolution of
marriage or the opening of the succession, the law applicable to each
institution applies)
• Provisional measures: lex fori

2. Capacity to act = Legal capacity

a) Notion: ability to carry out certain legal acts

b) Law applicable: art 9.1 SCC

o Aspects covered:

1. Ways of acquiring the capacity to act: emancipation, certain age, etc. (most
of the time related to the change of status)
2. Ways of losing the capacity to act: criminal convictions, incapacitation (only
before Law 8/2021 reforming civil and procedural legislation to support
people with disabilities in the exercise of their legal capacity: see below)

o Aspects not covered: support of persons with disabilities (Art. 9.6.II SCC)

c) Exceptions (cases specifically covered by institutional o international sources):

• Regulation 864/2007 of 11 July 2007 on the law applicable to non-contractual

obligations
(Rome Regulation 2 or RR2)

Article 15. Scope of the law applicable

“The law applicable to non-contractual obligations under this Regulation shall
govern in particular:
(a) the basis and extent of liability, including the determination of persons who may
be held liable for acts performed by them”

• Regulation 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition

and enforcement of decisions and acceptance and enforcement of authentic
instruments in matters of succession and on the creation of a European
Certificate of Succession

21
 (Succession Regulation)

Art 1.2: “The following shall be excluded from the scope of this Regulation: (b) the
legal capacity of natural persons, without prejudice to point (c) of Article 23(2) and to
Article 26”;

Art 23.2: The scope of the applicable law

“1. The law determined pursuant to Article 21 or Article 22 shall govern the
succession as a whole.
2. That law shall govern in particular: (c) the capacity to succeed”

Art 26 Substantive validity of dispositions of property upon death

“1. For the purposes of Articles 24 and 25 the following elements shall pertain to
substantive validity:
(a) the capacity of the person making the disposition of property upon death to
make such a disposition;
(b) the particular causes which bar the person making the disposition from disposing
in favour of certain persons or which bar a person from receiving succession property
from the person making the disposition;
(c) the admissibility of representation for the purposes of making a disposition of
property upon death;
(d) the interpretation of the disposition;
(e) fraud, duress, mistake and any other questions relating to the consent or intention
of the person making the disposition.
2. Where a person has the capacity to make a disposition of property upon death
under the law applicable pursuant to Article 24 or Article 25, a subsequent change of
the law applicable shall not affect his capacity to modify or revoke such a
disposition”.

• Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the

Form of Testamentary Dispositions

Article 5:
“For the purposes of the present Convention, any provision of law which limits the
permitted forms of testamentary dispositions by reference to the age, nationality or
other personal conditions of the testator, shall be deemed to pertain to matters of
form. The same rule shall apply to the qualifications that must be possessed by
witnesses required for the validity of a testamentary disposition”.

Ex. Persons who are blind

22
d) Role of International Public order is relevant in this matter.

• Example: laws which discriminate for reasons of gender, sex, religion,

race.
• Example: laws that allow incapacitation? Incapacitation does not exist
in Spain any more – Possibility of adaptation – This is new situation,
and there is no case law yet to solve this matter.

e) Renvoi: possible if lex causae follows the lex domiciliae as lex personae (because
Spain follows the law of the nationality). What to do? See Lesson 4: renvoi

Example: Legal capacity of a person with UK nationality and Spanish

domicile. Spanish courts have jurisdiction because of the HR, and
applies UK law to the capacity. But if UK law applies the law of the
domicile to the capacity, it brings back to Spanish law.

f) Exception of “national interest”

1) Regulation 593/2008 of 17 June 2008 on the law applicable to contractual

obligations (Rome I)

Article 13 Incapacity
“In a contract concluded between persons who are in the same
country, a natural person who would have capacity under the law of
that country may invoke his incapacity resulting from the law of
another country, only if the other party to the contract was aware of
that incapacity at the time of the conclusion of the contract or was not
aware thereof as a result of negligence”.
2) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children
Art 19
“1. The validity of a transaction entered into between a third party and
another person who would be entitled to act as the child's legal
representative under the law of the State where the transaction was
concluded cannot be contested, and the third party cannot be held
liable, on the sole ground that the other person was not entitled to act as

23
 the child's legal representative under the law designated by the
provisions of this Chapter, unless the third party knew or should have
known that the parental responsibility was governed by the latter law.
2. The preceding paragraph applies only if the transaction was entered
into between persons present on the territory of the same State”.

g) Specific inabilities

The law requests sometimes specific abilities to be able to carry out some legal
acts. The law applicable is not the law of the N but the law which applies to each
specific act (lex causae)

Example: can a confessor inherit? Answer: ruled by the law applicable to

the succession

3. Persons with disabilities

A. General remark: From protection through incapacitation of unable

persons … to complement, assistance and support of persons with
disabilities with enjoyment of rights?

• During the XXth century the concept of capacity was the cornerstone of the
whole treatment of the legal personality. As a result, human beings were divided
in two groups: capables and incapables. Capables were persons aged that had
not been incapacitated.

• The arrival of the XXIst century has changed dramatically the whole approach.
Instead of capacity/incapacity, the focus is addressed to the distinction between
persons without disabilities and persons with disabilities. Persons with
disabilities are not incapables. Rather, it is of utmost importance to preserve
their capacity and authonomy. They should not be “protected”. They should be
“accompanied” (see New York Convention 2006).

• As a result, article 49 Spanish Constitution (SC) has been modified in 2024:

o Previous text - Article 49

24
 “Los poderes públicos realizarán una política de previsión,
tratamiento, rehabilitación e integración de los disminuidos físicos,
sensoriales y psíquicos a los que prestarán la atención especializada
que requieran y los ampararán especialmente para el
disfrute de los derechos que este Título otorga a todos los
ciudadanos”.

“The public powers will carry out a policy of provision,

treatment, rehabilitation and integration of the physically,
sensorially and mentally handicapped. Public powers will
provide the specialized attention they require and will protect
them especially for the enjoyment of the rights that this Title
grants to all citizens”.

o Present text - Artículo 49 (after reform of 15 February 2024)

1. “Las personas con discapacidad ejercen los derechos previstos en

este Título en condiciones de libertad e igualdad reales y
efectivas. Se regulará por ley la protección especial que sea
necesaria para dicho ejercicio
2. Los poderes públicos impulsarán las políticas que garanticen la
plena autonomía personal y la inclusión social de las personas
con discapacidad, en entornos universalmente accesibles.
Asimismo, fomentarán la participación de sus organizaciones, en
los términos que la ley establezca. Se atenderán particularmente
las necesidades específicas de las mujeres y los menores con
discapacidad”

25
 1. Persons with disabilities exercise the rights provided for in
this Title under conditions of real and effective freedom and
equality. The special protection necessary for said exercise
will be regulated by law.
2. Public powers will promote policies that guarantee full
personal autonomy and social inclusion of persons with
disabilities, in universally accessible environments. Likewise,
they will encourage the participation of their organizations,
in the terms established by law. The specific needs of women
and minors with disabilities will be particularly addressed.

• As a result, Art. 9.6.II SCC was modified in 2021: Law 8/2021, of 2 June

o Previous text
“The law applicable to the protection of aged persons will be the law
of their habitual residence. In the event of change of residence to
another State, the law of the new habitual residence will apply,
without prejudice to the recognition in Spain of the protection
measures agreed in other States. However, Spanish law will apply to
the adoption of provisional or urgent measures of protection ”.

o New text

26
 “The law applicable to support measures for persons with disabilities
will be that of their habitual residence. In the event of a change of
residence to another State, the law of the new habitual residence
will apply, without prejudice to the recognition in Spain of support
measures agreed in other States. However, Spanish law will apply to
the adoption of provisional or urgente protection measures ”.

NOTE: Moving from “protection through incapacitation” to “complement of

capacity, assistance and support through enjoyment of rights” has changed
dramatically the way we address this matter now.

• Two international conventions are relevant on this regard:

1. UN New York Convention of 13 December 2006 on the Rights of Persons

with Disabilities and Optional Protocol

See a Summary of the New York 2006 Convention here

o More than 170 parties (included Spain)

o Includes both minors and aged
o The main objective is to preserve at the maximum level the capacity and
the authonomy of persons with disabilities.
o It implies a radical change of perspective: from incapacitation to
complement of capacity, assistance and support
o Spain has incorporated the UN Convention through Law 8/2021, of 2 June,
which reforms the civil and procedural legislation to support people with
disabilities in the exercise of their legal capacity (Ley 8/2021, de 2 de junio,
por la que se reforma la legislación civil y procesal para el apoyo a las
personas con discapacidad en el ejercicio de su capacidad jurídica). It is of
outmost importance to study this law, one of the most relevants agreed
in Spain in the last decades.

27
 Article 1 – Purpose
“The purpose of the present Convention is to promote, protect and
ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities, and to promote
respect for their inherent dignity.
Persons with disabilities include those who have long-term physical,
mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in
society on an equal basis with others”.

Article 3 - General principles

“The principles of the present Convention shall be:
a) Respect for inherent dignity, individual autonomy including the
freedom to make one’s own choices, and independence of
persons;
b) Non-discrimination;
c) Full and effective participation and inclusion in society;
d) Respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity;
e) Equality of opportunity;
f) Accessibility;
g) Equality between men and women;
h) Respect for the evolving capacities of children with disabilities
and respect for the right of children with disabilities to preserve
their identities”.

2. The Hague Convention of 13 January 2000 on the international Protection

of Adults

Not ratified by Spain yet:

In force in Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland,
France, Germany, Greece, Latvia, Malta, Monaco, Portugal, Switzerland, UK
(only for Scotland). See update in the status table

See the Note of the European Parliament in 2012 encouraging all

members states of the EU to join the Convention, here

28
 • The European Commission proposed on 31 May 2023 a Regulation for intra EU
cases) and a Council Decision – Both texts are under discussion

o Proposal for a Regulation of the European Parliament and of the Council

on jurisdiction, applicable law, recognition and enforcement of measures
and cooperation in matters relating to the protection of adults + Annexes

o Proposal for a Council decision authorising Member States to become or

remain parties, in the interest of the European Union, to the Convention
of 13 January 2000 on the International Protection of Adults + Annex

B. Protection of aged persons

1. Jurisdiction (= HR in Spain)

a) General rule

Art 22 ter SOLJ: domicile of the defendant in Spain

Art 22 quáter b) SOLJ

“En materia relacionada con la capacidad de las personas y las medidas de

protección de las personas mayores de edad o de sus bienes, cuando éstos
tuviesen su residencia habitual en España”

“In matters related to the capacity of persons and to the measures to protect
aged persons or their properties, when they have habitual residence in Spain”

b) Provisional measures

Art 22 sexies SOLJ

“Los Tribunales españoles serán competentes cuando se trate de adoptar

medidas provisionales o de aseguramiento respecto de personas o bienes que
se hallen en territorio español y deban cumplirse en España. Serán también
competentes para adoptar estas medidas si lo son para conocer del asunto
principal”

29
 “The Spanish Courts will be competent in matters related to the adoption of
provisional measures or of assurance measures with respect to persons or
goods located in Spanish territory and that must be fulfilled in Spain. They
will also be competent to adopt those measures if they are competent to
deal with the main proceedings”

2. Applicable law

Art 9.6.II SCC

As expressed before, today art. 9.6.II SCC does not refer to “protection of aged persons”
but to “support measures for persons with disabilities”.

Consequence: The jurisdiction rules and the applicable law rules refer to different
situations (boxes). Article 22 quarter b) SOLJ should be interpreted in a way that can be
coordinated with art. 9.6.II SCC

III. Civil status

1. Majority (aged) and minority

A. Majority (aged) and minority imply a civil status which affect the capacity to act.

Consequently, art. 9.1.I SCC applies to three situations:

a. The moment at which the age of majority is reached – civil status

o Spaniards: 12 SC = 9.1 SCC + 315 SCC

▪ Art 12 SC: “Spaniards legally come of age at eighteen” - Unilateral

▪ Art 9.1 SCC: N as connecting factor - Multilateral

▪ Art 315 SCC: The majority of age starts at eighteen years (“Legal
age begins upon turning eighteen”)

30
 But in fact art. 315 SCC refers to the legal age “of the
Spaniards”, as art. 315 SCC applies only to Spaniards
(because of 9.1 SCC: N as connecting factor)

o International Public Order. Example: cases where majority is different

for men and women

o Other countries: see https://worldpopulationreview.com/country-

rankings/age-of-majority-by-country

o Age of majority should not be confused with other ages (sexual

consent, marriage, school leaving, drinking, voting, smoking, give
blood, consent for surgery, etc.) where art 8 SCC applies: Spanish law
as mandatory law to those who are present in Spain.

b. The legal effects of the acts performed by minors – capacity

c. The necessary intervention of certain persons to “complete the capacity” of

a minor (parents, tutors, etc.)

B. Mobile conflict: “semel major semper major”: art 9.1.II SCC

Art 9.1.II SCC

“A change in personal law shall not affect the coming of age acquired in
accordance with the former personal law”.

2. Emancipation

A. Jurisdiction (because it is an act of voluntary (non-contentious) jurisdiction)

• No answer in SOLJ
• It should be HR in Spain of person requesting emancipation (analogy with
protection of minors), but N could also be argued

B. Applicable law.

Emancipation implies a civil status which affects the capacity to act. Consequently, art.
9.1.I SCC (law of the N) applies to both

31
 • The civil status: Who, when and how can a person be emancipated, and grounds
for termination of emancipation
• The capacity: effects of emancipation

3. Gender and transexuality

• Gender of a person affects his/her civil status but it should not affect his/her
capacity: art 9.1 SCC
• European Court of Human Rights (ECHR): transexuality affects the European
Convention of Human Rights:
o Art. 8 (“private and family life”: right of a person to define his/her gender,
and to change gender / sex) and
o Art. 12 (“right of a person to marriage”)
• International Public Order: laws which deny the possibility of changing gender /
sex
• Change of gender and transexuality of minors is a very complex issue

IV. Personality rights

1. General approach
A. Concept

Set of rights acquired from birth and recognized in national constitutions (see art 18
SC) and international conventions with mandatory character: rights to honor, to
personal image, to physical integrity, to privacy, to have a name, etc.

Art 18 SC
“1. The right to honour, to personal and family privacy and to the own
image is guaranteed”.

B. Law applicable:

• Infringement of personality rights implies a non-contractual liability

32
• But Rome Regulation 2 (RR2) (Regulation 864/2007 of 11 July 2007) excludes this
matter from its scope of application,

Art 1.2. “The following shall be excluded from the scope of this
Regulation:
g) non-contractual obligations arising out of violations of privacy and
rights relating to personality, including defamation”.

• So art 10.9.I SCC applies

“Non-contractual
“Las obligaciones no obligations shall be
contractuales se regirán por la ley governed by the law of the
del lugar donde hubiere ocurrido place where the event from
el hecho del que deriven” which they derive took
place”

• It is important to note that most of these rights are included in the mandatory rules
contained in the Organic Law 1/1982, of 5 May 1982, of civil protection of the right
of honor, personal and family intimate (privacy) and personal image

2. Right to have a name

General rule:

- Every person has the right to have a name (forename and surname)

i. Foreigners: The forename and surname of a foreigner are governed by

his/her personal law (Art. 219 Civil Registry Regulation)

ii. Spaniards: And the name and surmane of a Spaniard? art. 9.1 SCC?

- There are no direct EU Regulations, but international conventions and domestic

law. However, the European Court of Justice (ECJ has render some very relevant
judgments on this matter.

33
A. International conventions

a) General conventions

1. International Covenant on Civil and Political Rights (16 December 1966)

Article 24.2
Every child shall be registered immediately after birth and shall have a
name.

2. Convention on the Rights of the Child (20 November 1989)

Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and, as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.

• Rights from birth: name, nationality, parents (know and care)

• No reference to the applicable law (the Convention is mandatory law)

b) Specific conventions

3. International Commission on Civil Status (ICCS) 19 Convention on the

law applicable to surnames and forenames (Munich, 5 September 1980).

Ratified by Germany, Austria, Belgium, Spain, Greece, Italy, Luxembourg,

Netherlands, and Portugal.

See Explanatory Report here

Issues:
• What is the applicable law to the determination of surnames and
forenames? Law of the N (art 1.1)
34
 • What happens in case of change of N? New N applies (art 1.2)
• Has the Convention universal application? Yes (art 2)
• What happens if civil registrars are not able to know the content of the N
law? Lex fori (art 5)
• Can a member state make a reservation stating that lex fori will apply to
persons with HR in this territory? Yes, but the names will be only valid in
this State

Article 1
1. The surnames and forenames of a person shall be determined by the
law of the State of which he or she is a national. For this purpose
exclusively, the situations on which surnames and forenames depend
shall be assessed in accordance with the law of that State.
2. In case of a change of nationality, the law of the State of the new
nationality shall apply.

Article 2
The law designated by this Convention shall apply even if it is the law of a
State which is not a Contracting State.

Article 5
1. If civil registrars who are drawing up a record cannot obtain
information about the law applicable to the determination of the
surnames and forenames of the person concerned, they shall apply their
domestic law and so inform the authority to which they are answerable.

Article 6
1. At the time of signature, ratification, acceptance, approval or accession,
any State may reserve the right to apply its domestic law if the person
concerned has his or her habitual place of residence in its territory.
2. A determination of surnames and forenames in accordance with that
law shall be valid only for the Contracting State which made the
reservation.

4. ICCS 4 Convention concerning changes of surnames and given names

(Istanbul, 4 September 1958).

35
See Spanish text here –
Ratified by Germany, Belgium, France, Luxembourg, Netherlands, Turkey, Austria,
Italy, Spain, Portugal

Issues:
• Scope of application (art 1)
• Main principle: no changes for nationals of another contracting State (art 2)
• Definitive decisions authorizing, annulling or revoking a change of name
taken in a contracting state for their nationals or stateless domiciled are
ipso facto enforceable in the other contracting states (arts 3,4)
• Exceptions to enforceability:
o Contrary to international public order (art 3)
o Person is also national of the contracting state where the decision has
to be enforced (art 5)

Article 1
This Convention concerns changes of surnames or forenames authorised
by the competent public authority, but not changes resulting from a
modification to the status of a person or the rectification of an error.

Article 2
Each Contracting State undertakes not to authorise changes of surnames
or forenames for nationals of another Contracting State, unless they are
also nationals of the first-mentioned State.

Article 3
Definitive decisions taken in a Contracting State which authorise a
change of surname or forenames either for its nationals or for stateless
persons or refugees within the meaning of the Geneva Convention of 28
July 1951 who are domiciled or, failing that, resident in its territory, shall
be enforceable ipso iure in the territory of each Contracting State unless
they are contrary to its public policy. Marginal annotations referring to
such decisions shall be made, without further formality, in the civil status
records of the persons to whom they relate.

Article 4
The provisions of the preceding Article shall apply to decisions annulling
or revoking a change of surname or forenames.

36
 Article 5
Notwithstanding Articles 3 and 4, any Contracting State may stipulate
that the effectiveness in its territory of decisions taken in another
Contracting State shall be subject to special conditions concerning
publicity and to a right of objection exercisable in a manner determined
by the first-mentioned State, where such decisions relate to persons who
were also nationals of that State at the time when the decisions became
definitive.

5. ICCS 21 Convention on the issue if a certificate of differing surnames

(The Hague, 8 September 1982).

See Spanish text here – Ratified by Belgium, Spain, France, Greece, Italy,
Luxembourg, Netherlands, Portugal, Turkey)

Issues
• Purpose of the Convention. Art 1
• What is the effect of the certificate? To evidence in all contracting states
the correctness: Art 3

Article 1
1. The certificate of differing surnames created by this Convention is
intended to facilitate proof of identity for persons who, owing to
differences between the laws of certain States, particularly regarding
marriage, filiation or adoption, are not designated by one and the same
surname.
2. The sole purpose of this certificate is to record that the various
surnames it mentions designate, under different laws, the same person. It
cannot have the effect of overriding legal rules governing names.

Article 3
Certificates issued pursuant to this Convention shall be accepted in each
Contracting State as evidencing the correctness of the particulars they
contain concerning the different surnames of the person designated
therein, unless and until the contrary is proved.

B. Domestic Spanish law:

37
1. The right of having a name is not in SC, but it could be included as a part of of right
of personal image (art 18 SC)

2. Arts 50-57 CRL (Civil Registry Law), Ley del Registro Civil (in force from 30 June
2017)

Art 50. Right to a name.

1. Everyone has the right to a name from birth.
2. People are identified by their name and surname.

Art 50. Derecho al nombre.

1. Toda persona tiene derecho a un nombre desde su nacimiento.
2. Las personas son identificadas por su nombre y apellidos.

Art 51. Principle of free choice of the proper name.

The proper name will be freely chosen and will only be subject to the
following limitations, which will be interpreted restrictively:
1. No more than two simple names or one compound may be entered.
2. No names that are contrary to the dignity of the person or those that
make identification confusing may be imposed.
3. The name of one of his siblings with identical surnames may not be
imposed on the born, unless the sibling has died.

Art 51 Principio de libre elección del nombre propio.

El nombre propio será elegido libremente y sólo quedará sujeto a las
siguientes limitaciones, que se interpretarán restrictivamente:
1.º No podrán consignarse más de dos nombres simples o uno
compuesto.
2.º No podrán imponerse nombres que sean contrarios a la dignidad de
la persona ni los que hagan confusa la identificación.
3.º No podrá imponerse al nacido nombre que ostente uno de sus
hermanos con idénticos apellidos, a no ser que hubiera fallecido.

38
 Article 56. Surname with foreign element.
The person who acquires Spanish nationality will keep the surnames that he
or she holds in a way other than the legal one, provided that they declare it
in the act of acquiring it or within the two months following the acquisition
or the age of majority, and that the surnames that they intend to preserve
are not contrary to international public order. In the case of Spanish citizens
who also have the nationality of another Member State of the European
Union, voluntary surname changes made in accordance with the rules
relating to the determination of surnames applicable in the latter State will
be recognized in Spain, except when said change is contrary to Spanish
public order, or when said change having been the result of a court decision,
it has not been recognized in Spain.

Artículo 56. Apellidos con elemento extranjero.

El que adquiere la nacionalidad española conservará los apellidos que
ostente en forma distinta de la legal, siempre que así lo declare en el
acto de adquirirla o dentro de los dos meses siguientes a la adquisición o
a la mayoría de edad, y que los apellidos que se pretenden conservar no
resulten contrarios al orden público internacional. En caso de ciudadanos
españoles que tengan igualmente la nacionalidad de otro Estado
miembro de la Unión Europea, los cambios de apellidos voluntarios
realizados de conformidad con las reglas relativas a la determinación de
apellidos aplicables en este último Estado serán reconocidos en España,
salvo cuando dicho cambio sea contrario al orden público español, o
bien cuando habiendo sido dicho cambio resultado de una resolución
judicial ésta no haya sido reconocida en España.

3. Arts 192 y 219 CRR (Civil Registry Regulation), Reglamento del Registro Civil):

Art 199
The person who acquires Spanish nationality will keep the surnames that he
or she holds in a different way than the legal one, provided that he / she
declares it in the act of acquiring it, or within the two months following the
acquisition or at the age of majority. The declaration will conform to the
rules of the previous article.

Art 199
El que adquiere la nacionalidad española conservará los apellidos que
ostente en forma distinta de la legal siempre que así lo declare en el acto

39
 de adquirirla, o dentro de los dos meses siguientes a la adquisición o a la
mayoría de edad. La declaración se ajustará a las reglas del artículo
anterior.

Art 219 .
The name and surname of a foreigner are governed by his personal law
Art
219
El nombre y apellidos de un extranjero se rigen por su ley personal.

C. Case Law from the European Court of Justice

A. Cases in which the person concerned had several nationalities, and from the birth
he/she had different names in each member State
1. Judgment of the European Court of Justice (ECJ) of 2 October 2003 (C-148/02)
García Avello

B. Cases in which the person concerned did not have several nationalities, and from the
birth he/she had different names in each member State: mutual recognition
1. Judgment of the ECJ of 14 October 2008 (C-353/06) Grunkin-Paul
2. Judgment of the ECJ of 12 May 2011 (C-391/09) Vardyn

C. Cases in which the person concerned did not have several nationalities, and the
difference in the names was the result of a change in personal status following
application of provisions of family law (adoption, marriage)
1. Judgment of the ECJ of 22 December 2010 (C-208/09) Sayn-Wittgenstein
2. Judgment of the ECJ of 12 May 2011 (C-391/09) Vardyn

D. Cases in which the person concerned had several nationalities and the new name
was acquired independently of any change of personal status which occurred
following the application of family law provisions.
1. Judgment of the ECJ of 2 June 2016 (C-438/14) Bogendorff von Wolffersdorff

……..

National Spanish legislation

40
Spanish Constitution (SC)

Art 11 SC:
“1. Spanish nationality is acquired, retained and lost in accordance with the
provisions of the law.
2. No person of Spanish origin may be deprived of his or her nationality.
3. The State may negotiate dual nationality treaties with LatinAmerican countries
or with those which have had or which have special links with Spain. In these
countries, Spaniards may become naturalised without losing their nationality of
origin, even if said countries do not recognise a reciprocal right to their own
citizens”.

Art 12 SC: “Spaniards legally come of age at eighteen”.

Article 18 SC
1. The right to honour, to personal and family privacy and to the own image is
guaranteed.
4. The law shall limit the use of data processing in order to guarantee the honour
and personal and family privacy of citizens and the full exercise of their rights.

Spanish Civil Code (SCC)

Art 9.1 SCC: “The personal law applicable to an individual shall be determined by his nationality.
Such law shall govern capacity and civil status, family rights and duties and mortis
causa succession. A change in personal law shall not affect the coming of age acquired in
accordance with the former personal law”.

Art 9.9 SCC: “For the purposes of the present chapter, the provisions of the international treaties
shall apply to situations of dual nationality provided under Spanish law, and, in the absence of
such provisions, the nationality of the last place of habitual residence and, in the absence thereof,
the last nationality acquired shall be preferred. In any event, Spanish nationality shall prevail for
persons who also hold another nationality that is not provided for in Spanish statutes or
international treaties. If such person should hold two or more nationalities, and none should be
Spanish, the provisions of the following section shall apply”.

Art 9.10 SCC: “The law of the place of habitual residence shall be deemed to be the personal law of
persons without nationality or with indeterminate nationality”.
41
Art 10.9.I SCC: “Non-contractual obligations shall be governed by the law of the place where the
event from which they derive took place”

ARTICLES 17-33 SCC

BOOK I ON PERSONS
TITLE ONE On Spaniards & aliens

Article 17
1. The following persons are Spaniards of origin (by birth right):
a) Those born of a Spanish mother or father;
b) Those born in Spain of foreign parents if at least one of them has also been born in Spain. The
children of a diplomatic or consular official accredited in Spain shall be excepted from this
provision;
c) Those born in Spain of foreign parents, if both of them are stateless, or if the legislation of
neither of them attributes a nationality to the child;
d) Those born in Spain of uncertain (not determined) filiation. For these purposes, minors whose
first known place of stay is in Spanish territory shall be presumed born within Spanish territory.
2. Filiation or birth in Spain determined after the person is eighteen shall not by itself constitute a
cause to acquire Spanish citizenship. The interested party shall then be entitled to opt for Spanish
nationality of origin within two years counting from such determination.

Article 18
The continued possession and use of Spanish nationality for ten years, in good faith and based on a
title registered at the Civil Registry shall constitute grounds for the consolidation of Spanish
nationality, even if the title which originated such nationality were to be annulled.

Article 19
1. A foreigner under eighteen years of age adopted by a Spaniard shall acquire Spanish nationaoity
of origin as of the adoption.
2. If the adopted person were to be older than eighteen, he or she may opt for Spanish nationality
of origin within two years following the adoption.
3. Without prejudice to the provisions of Section 1, if, pursuant to the legal system of the country
of origin, the adopted minor retains his/her nationality, it shall also be recognised in Spain.

Article 20
42
1. The following persons shall be entitled to opt for Spanish nationality:
a) Those who are or have been subject to the parental authority of a Spaniard;
b) Those whose father or mother was originally Spanish and born in Spain;
c) Those who are included in the second Section of Articles 17 and 19.
2. The declaration of option shall be formulated:
a) By the legal representative of the person who makes the option if the latter were to be younger
than fourteen years of age. In the event of a disagreement between the legal representatives of the
minor under fourteen years of age regarding the processing of the declaration of option, the
voluntary jurisdiction file provided for this purpose shall be processed.
b) By the interested party, assisted by his legal representative, if he is older than fourteen years of
age.
c) By the interested party, by himself, if he is emancipated or older than eighteen years of age. The
option shall expire at the age of twenty, but if he were not emancipated pursuant to his personal
law when he/she reaches the age of eighteen, the period to exercise the option shall be extended
until two years after his emancipation.
d) By the interested party with a disability with the support and procedural adjustments that,
where appropriate, he/she requires.
e) By the interested party, by himself, within two years following the expiration of the support
measures that had prevented him/her from exercising it previously.
3. Notwithstanding the provisions of the previous Section, the right to exercise the option
established in Section 1.b) of this Article shall not be subject to any age limit.

Article 21
1. Spanish nationality shall be acquired by decree of naturalisation, granted discretionally by Royal
Decree, when exceptional circumstances concur in the interested party.
2. Spanish nationality shall also be acquired by residence in Spain, under the conditions provided
in the following Article, and shall be granted by the Minister of Justice, who may refuse it on
reasoned grounds of public order or national interest.
3. In both cases, the application may be formulated by:
a) The interested party who is emancipated or older than eighteen years of age;
b) The person older than fourteen years of age assisted by his legal representative;
c) The legal representative of a person younger than fourteen years of age. In the event of a
disagreement between the legal representatives regarding the application for nationality by
residence, the voluntary jurisdiction file provided for this purpose will be processed.
d) The interested party with a disability with the support and procedural adjustments that, where
appropriate, he or she requires.
In this case and in the previous one, the legal representative may only make the request if he has
previously obtained authorization in accordance with the provisions of letter a) of section 2 of the
previous article.
4. Concessions by letter of naturalization or by residence expire one hundred and eighty days after
their notification, if within this period the interested party does not appear before an official
competent to comply with the requirements of article 23.

Article 22
1. Granting of citizenship pursuant to residence shall require ten years’ residence. Five years shall
be sufficient for those who have obtained the condition of refugees, and two years for nationals of

43
origin of Ibero-American countries, Andorra, the Philippines, Equatorial Guinea or Portugal, or for
Sephardic Jews.
2. One year’s residence shall be sufficient for:
a) A person born within Spanish territory;
b) A person who has not exercised his option right in due time;
c) A person who has been legally subject to guardianship, curatorship with full powers of
representation, guardianship or foster care of a Spanish national or institution for two consecutive
years, even if they are still in this situation at the time of the application.
d) A person who, at the time of the application, has been married to a Spaniard for one year and is
not separated de iure or de facto;
e) The widow or widower of a Spaniard if, upon the death of the spouse he were not separated de
iure or de facto;
f) The person born outside Spain of a father or mother, grandfather or grandmother, who were
originally Spanish.
3. In all cases residence must be legal, continuos and immediately prior to the application.
For the purposes of the provisions of Paragraph d) of the preceding Section, the spouse cohabiting
with a Spanish diplomatic or consular official accredited abroad shall be deemed to have legal
residence in Spain.
4. The interested party must evidence good civic conduct and a sufficient degree of integration
into Spanish society in the proceedings regulated by the Civil Registry legislation.
5. The granting or refusal of nationality pursuant to residence shall be open to contentious
administrative appeal.

Article 23
The following are common requirements for the validity of the acquisition of Spanish nationality by
option, naturalisation or residence:
a) For the person older than fourteen years of age and capable of issuing a statement by himself to
swear or promise fidelity to the King and compliance with the Constitution and the laws;
b) For the same person to declare that he/she renounces his/her prior nationality. Nationals of the
countries mentioned in Section 1 of Article 24 and Sephardic Jews originally from Spain are
excepted from this requirement;
c) For the acquisition to be registered with the Spanish Civil Registry.

Article 24
1. Emancipated persons habitually resident abroad who voluntarily acquire another nationality or
who exclusively use their foreign nationality attributed prior to their emancipation shall lose their
Spanish nationality. Such loss shall take place after the lapse of tree years, counting, respectively,
from the acquisition of the foreign nationality or from the emancipation. However, interested
parties may prevent any such loss if they declare their desire to retain Spanish nationality to the
official in charge of the Civil Registry within the indicated period.
Acquisition of the nationality of Ibero-American countries, Andorra, the Philippines, Equatorial
Guinea or Portugal shall not be sufficient to cause the loss of Spanish nationality of origin.
2. In any event, emancipated Spaniards who explicitly renounce their Spanish nationality shall lose
it if they have another citizenship and reside abroad.
3. Those who were born and reside abroad and who have Spanish nationality by virtue of having a
Spanish father or mother, who were also born abroad, if the laws of the country in which they
reside attribute them the nationality of that country, shall lose Spanish nationality at any rate if
44
they do not declare their desire to retain it to the official in charge of the Civil Registry within a
period of three years, counting from their age of majority or emancipation.
4. Loss of Spanish nationality shall not take place pursuant to the provisions of this Article if Spain
were at war.

Article 25
1. Spaniards who are not of Spanish origin shall lose their nationality:
a) If for a period of three years they have exclusively used the nationality which they have declared
to have renounced upon acquiring Spanish nationality;
b) If they were to voluntarily enter the armed forces or exercise public office in a foreign State
against the Spanish Government’s explicit prohibition.
2. A final judgment holding that the relevant party has incurred in misrepresentation, concealment
or fraud in the acquisition of Spanish nationality shall cause such acquisition’s to be null and void,
although no prejudicial effects shall result for bona fide third parties. The action for annulment
shall be exercised by the Public Prosecutor on his own motion or pursuant to a complaint, within a
period of fifteen years.

Article 26
1. A person who has lost his Spanish nationality may recover it by fulfilling the following
requirements:
a) Being a legal resident in Spain. This requirement shall not apply to emigrants or to the children
of emigrants. In the remaining cases, it may be waived by the Minister of Justice when exceptional
circumstances concur;
b) Declaring before the official in charge of the Civil Registry his intention to recover Spanish
nationality; and
c) Registering the recovery at the Civil Registry.
2. Persons incurring in any of the grounds provided in the preceding Article may not recover or
acquire, as the case may be, Spanish nationality, without the Spanish Government’s prior
authorisation, which shall be granted discretionally.

Article 27
Foreigners shall enjoy in Spain the same civil rights as Spaniards, save as provided in special laws
and in the treaties.

Article 28
Corporations, foundations and associations recognised by law and domiciled in Spain shall have
Spanish nationality, provided that they are legal persons pursuant to the provisions of the present
Code.
Associations domiciled abroad shall have in Spain the consideration and rights determined by
treaties or special laws.

Art 29 SCC
Birth determines personality; but the child conceived shall be deemed already born for all
purposes favourable to him, provided that he should be born under the conditions expressed in
the following article.

45
Art 30 SCC (previous text)
“For civil purposes, only the foetus with human appearance that lives for twenty- four hours fully
separated from the mother’s womb shall be deemed to have been born”.

Art 30 SCC (present text: Law 20/2011, of 21 July, of Civil Registry)

“The personality is acquired at the moment of the birth with life, once produced the entire
detachment of the mother's wom

Art 32 SCC
“The civil personality is extinguished by the death of the person”.

Art 33 SCC
“If there is doubt, between two or more persons called to succeed each other, who of them has
died first, whoever sustains the previous death of one or the other, must prove it; In the absence of
evidence, all of them are presumed dead at the same time and the transfer of rights does not take
place from one to the other

46
47