Marriage, its forms and requirements

Marriage
 
Marriage is an institution recognized internationally in different public law texts. In the Universal Declaration of Human Rights of December 10, 1948 in its article 16, in the International Covenant on Civil and Political Rights of December 15, 1966 in its article 23 and the International Covenant on Economic, Social and Cultural Rights in its Article 10 which is the central nucleus of the family that naturally forms the family and fundamental column of society that must be especially protected by the State. In our Constitution it is recognized as a right in its article 32, which establishes that men and women have the right to contract marriage with full legal equality and also that the law will regulate the ways of contracting marriage, the age and capacity to contract it, the rights and duties of spouses and the causes of separation and dissolution and their effects.
 
Forms of celebrating marriage
 
1. Civil marriage
 
It is that protocol or ceremonial or set of acts that are celebrated before a judge in accordance with civil law in which two people freely, unequivocally and voluntarily consent to begin a marital relationship prior to the preparation of an act or file in which they are confirmed. the capacity requirements of both parties and the absence of impediments or their dispensation or any other type of obstacles to contracting marriage.
Marriage, being an institution that is established through a contract formed by two wills, generates rights and obligations according to the law.
 
Article 42 of the Civil Code establishes that the promise does not produce an obligation to contract it or to comply with what has been stipulated in the event of its non-celebration. As well as, the demand seeking its fulfillment will not be admitted.
 
Article 43 of the Civil Code establishes that the breach without cause of the certain promise of marriage made by a person of legal age or by an emancipated minor will only produce the obligation to compensate the other party for the expenses incurred and the obligations contracted in consideration of the promised marriage. However, this action will expire one year from the day of the refusal to celebrate the marriage.
 
Requirements.
 
Consent. It is defined as the free manifestation or declaration of will expressed by the parties to enter into marriage.
And article 45 of the Civil Code establishes that there is no marriage without marital consent, and furthermore, that the condition, term or mode of consent will be considered not established.
 
Likewise, article 73 Civil Code establishes that marriage is null and void regardless of the form of its celebration:
  • Marriage celebrated without consent 
  • The marriage celebrated between the persons referred to in the following articles 46 and 47, except for the dispensation in accordance with article 48.
    • Article 46 Civil Code. They cannot get married:
      • Non-emancipated minors
      • Those who are linked by marriage, 
    • Article 47 Civil Code. They also cannot marry each other:
      • Relatives in a direct line by blood or adoption.
      • Collaterals by consanguinity up to the third degree
      • Those convicted of having participated in the intentional death of the spouse or person with whom they had been united by an emotional relationship analogous to the marital one
    • However, the provisions of Article 48 of the Civil Code are excepted, which establishes that the Judge may dispense, with just cause and at the request of a party, by means of a prior resolution issued in a voluntary jurisdiction file, the impediments of intentional death of the spouse or person with whom that would have been united by an analogous relationship of affection to the conjugal one and of third degree kinship between collaterals. The subsequent dispensation validates, from its celebration, the marriage whose annulment has not been judicially requested by any of the parties.
  • That which is contracted without the intervention of the Justice of the Peace, Mayor or Councilor, Judicial Secretary, Notary or official before whom it must be held, or without that of witnesses.
  • The one concluded by mistake in the identity of the person of the other contracting party or in those personal qualities that, due to their entity, would have been determining factors in the provision of consent.
  • That contracted by coercion or serious fear.
Of the competence to prepare the civil marriage certificate or file.
Establishes article 51 Civil Code.
  1. The competence to verify by means of a record or file the fulfillment of the capacity requirements of both parties and the absence of impediments or their dispensation, or any type of obstacles to contracting marriage will correspond to the Judicial Secretary, Notary or Person in Charge of the Civil Registry of the place of one's domicile. of the spouses or to the diplomatic or consular official in charge of the Civil Registry if they reside abroad.
  2. Be competent to celebrate the marriage
    1. The Justice of the Peace or Mayor of the municipality where the marriage is celebrated or councilor to whom he delegates.
    2. The Judicial Secretary or Notary freely chosen by both parties who is competent in the place of celebration.
    3. The diplomatic or consular official in charge of the Civil Registry abroad.
Marriage may also be contracted through a proxy, to whom special power must have been granted in an authentic manner, with the personal assistance of the other party always being necessary. 
 
The power of attorney will determine the person with whom the marriage is to be celebrated, with expression of the personal circumstances necessary to establish their identity, and its validity must be appreciated by the judicial secretary, notary, person in charge of the civil registry or official who processes the marriage certificate or file. prior to marriage. 
 
The power will be extinguished by the revocation of the principal, by the resignation of the agent or by the death of any of them. In the event of revocation, the court secretary, notary, person in charge of the civil registry or official who processes the record or file prior to the marriage will be immediately notified, and if it is already finalized, the person who is going to celebrate it. 
 
On the formality of the celebration of civil marriage. 
 
The justice of the peace, mayor, councilor, judicial secretary, notary or official, after reading the following articles:  
 
Art. 66. Spouses are equal in rights and duties. 
 
Art. 67. Spouses must respect and help each other and act in the interest of the family. 
 
Art. 68. Spouses are obliged to live together, remain faithful and help each other. They must also share domestic responsibilities and the care and attention of ascendants and descendants and other dependents in their care. 
 
He will ask each of the parties if they consent to contract marriage with the other and if they actually contract it in said act and, both answering affirmatively, he will declare that they are united in marriage and will extend the act or authorize the corresponding deed. 
 
Documentation necessary for the celebration of a civil marriage. 
  • Birth certificate. 
  • Certificate of registration. 
  • Faith of life and state. 
  • Written declaration, which is presented to the judge in charge of the Civil Registry, signed by both spouses. 
  • If any of the parties were previously married, they must present a certificate of their previous marriage, with the marginal registration of the divorce or annulment. 
  • If someone is widowed, they must present the death certificate of the deceased spouse. 
2. Religious marriage 
 
Marital consent may be provided in the manner provided for by a registered religious denomination, under the terms agreed with the State or, failing that, authorized by its legislation. 
 
Marriage celebrated according to the norms of canon law or in any of the other religious forms provided for in the cooperation agreements between the State and religious confessions produces civil effects. 
 
The recognition of civil effects will require compliance with the following requirements: 
  1. the processing of a record or prior file of marital capacity in accordance with the regulations of the Civil Registry. 
  2. the free expression of consent before a duly accredited minister of worship and two witnesses of legal age.
  3. The celebration of the marriage will be recorded by means of a public document or deed that will be signed by the person before it is celebrated, the spouses and two witnesses.
  4. the document has been extended or the public deed has been authorized, the authorizing officer will send a copy of the celebration of the marriage to the competent Civil Registry, for its registration, after qualification by the person in charge of the same. 
The registration of a marriage celebrated in Spain in a religious manner will be carried out with the simple presentation of the certification of the church, or religious confession or respective federation, which must express the circumstances required by the Civil Registry legislation. 
 
Therefore, the practice of the entry will be denied when the documents presented or the Registry entries show that the marriage does not meet the requirements required for its validity in Title IV of the Civil Code. 
 
Consequently, the marriage produces civil effects from its celebration and for the full recognition of these, its registration in the Civil Registry will be necessary. However, unregistered marriage will not prejudice the rights acquired in good faith by third parties.
 
Documentation necessary for the celebration of the canonical marriage.
    • Original and photocopy of the DNI, passport or residence card of the two spouses.
    • Literal birth certificate.
    • Photocopy of the family book of the parents of both spouses where the name of each member of the couple appears.
    • Baptism certificate of both.
    • Certificate of faith and status. 
    • Certificate of attendance or completion of the premarital course.
    • Certificate of having received the sacrament of confirmation. 
 
Rafael Reyes Pulido