The year 2015 will be marked in the notarial field by the approval of the Voluntary Jurisdiction Act, which together with the reform of the Mortgage Act and the Bankruptcy Act, in relation to extrajudicial payment agreements, have attributed to notaries a significant number of new powers, sometimes exclusive and sometimes shared with other legal operators.
As I had the opportunity to state in a talk at the Lleida Bar Association, in response to the question about whether these new notarial files were going to be used, I wanted to differentiate three groups of them, pointing out which ones would be used:
a.- those of a mandatory nature, such as declarations of intestate heirs,
b.- those whose usefulness falls on the conscience of the people, as would be the case of marriages and divorces before a notary;
c.- while the use of the rest of the files would depend, in addition to whether or not the case they regulate was habitual, on the impetus that could be given to it by all the professionals who work in the field of justice.
These ideas are the ones that have been reflected in my experience during the second half of 2015, as I do not have statistics on the number of new cases that have been initiated and/or completed, at a national or even local level, since the aforementioned laws came into force.
In this post I would like to share my experience with divorces before a Notary, one of the key measures of the Voluntary Jurisdiction Law.
I have authorized four divorces, all of them satisfactorily concluded. Another one was not signed, due to the spouses' wishes, so I must say that they did me a favor, since I really did not like the content of the Agreement.
Each divorce has been different and in all of them the doubts generated by the law, raised by the first interpreters of the law, have been brought to light.
The personal attendance of those appearing.
The first divorce I authorised was a few days after the law came into force. It was the first in Lleida, and perhaps also in Catalonia. The problem we faced was that the wife was in China, and unable to move. The formula used, and I do not mean to say that it was ingenious or imaginative, was that the lawyer who was handling the divorce would represent her, with the wife ratifying it at the Spanish Consulate in China. This fact delayed the finalisation of the divorce a little longer, but as I said before it is correctly registered in the Civil Registry.
The allocation of assets in the case of separation of assets.
The second divorce was the most complex, because in addition to the existence of adult children of the marriage, the deed itself allocated common property, and recognized benefits that fell on private property. From a human point of view, it was also the most emotional, because there was no lack of tears after the signing, which meant the passage of a stage in the lives of all of them.
I would like to make two reflections on this divorce:
a.- The first are the advantages of notarial action: : There may not be many people who are aware of the enormous advantages of the notary's work, but the truth is that our intervention in divorces provides greater clarity to the patrimonial and fiscal aspects, which have been largely forgotten in divorces processed before the Courts; we are not smarter than other professionals, but we do have a broader vision, due to the very way our profession is carried out with direct and close contact with people, which allows us to adapt the agreements to their needs.
b.- The second reflection refers to the nonsense of the existence of a different taxation Depending on whether the divorce is processed before a Notary or before the Court Clerk, in those cases where the alternative is possible, the Stamp Duty ends up affecting exclusively notarial divorces, at least in marriages subject to the Separation of Assets. In the case of the divorce I am talking about, the expense was affordable, in addition to the other advantages of notarial action, but I also know that there are lawyers who have not gone to the Notary, because when dividing a significant estate, the tax could rise to more than 10,000 euros.
The need for clarification of the possibility of notarial divorce in the case of minor children of only one of the spouses.
In another divorce, one of the spouses had a child from a previous relationship. Given the doubts about the law, as to whether a notarial divorce could be used, I decided to authorize the divorce, and I can confirm that there was no element of harm between the spouses or to the child, who belonged to only one of them, was 15 years old, was present, and was perfectly aware of what his parents were doing.
Satisfaction for notarial divorce
All the people and lawyers have expressed their satisfaction at being able to go to the notary's office, because of the flexible hours, the speed of its execution and the totally intimate nature of the divorce.
