Marriage with a foreign element: celebration and effects
Questions of capacity in a marriage with a foreign element
The personal law of the individual, in accordance with Art. 9.1º Cc, determines the conditions relating to his or her nuptial capacity.
Although the national law of the individual is applicable to his or her capacity, there is in this area, as in matters of consent, a strong presence of Spanish public order, and therefore Articles 46 and 47 of the Civil Code are of mandatory application. It is not possible, for example, for a contracting party to marry in our country or before our authorities if he or she is bound by a marriage bond, even if his or her national law permits it.
In this matter, some questions arise. Does a Spanish national who has been divorced abroad have the capacity to remarry? Yes, but the divorce decree must be recognised in Spain and registered in Spain.
However, this is not the case for foreign nationals divorced in their own country, given that in order to prove their marital capacity it is sufficient for the judgement to comply with the requirements for public documents; legalisation or apostille, where necessary, and translation, where applicable. This was pointed out in the Resolution of the Directorate General of Registries and Notaries of 4 March 1988.
Another issue raised in different decisions of the DGRN is the requirement of the age of majority. It is the national law of the individual, as we have already pointed out, that is applicable to capacity, as long as it does not violate Spanish public order and, therefore, in Spain one must be 18 years of age or 16 emancipated in order to be able to marry, whatever the national law of the contracting party may say.
Polygamy is also contrary to public policy, even if it is permitted by the national law of the contracting party.
Consent of the parties
Consent is the primary requirement for the validity of the marriage. As consent is a prerequisite for marriage as a civil status and a substantial condition for its validity, it must be governed by the national law of the contracting party at the time of the celebration of the marriage, in application of the generic rule of 9.1º Cc. However, as in questions of capacity, there is a strong presence of Spanish public order that prevents, even if it is protected by the national law of the contracting party, arranged marriages or considers null and void marriages of convenience where the contracting parties marry to avoid the rules on foreigners.
Forms of marriage
The form of celebration of marriages with a foreign element, including consensual marriages and consular marriages, must comply with Articles 49 and 50 of the Civil Code. These articles refer to the forms of marriage that are effective in our state, both civil and religious, when one or both of the parties are foreigners or the marriage takes place abroad. The religious forms legally provided for are canonical, evangelical and Hebraic.
They are inspired by the favor foreign marriage and respect for the equality of spouses and the principle of religious freedom.
The problems that occur with marriage with a foreign element are very different from those that occur with domestic marriages. At Winkels Abogados there is a team of professionals who can help you with all the issues that arise due to the peculiarities of these marriages.