Spanish Civil Code, Apuntes de Derecho Civil

¡Descarga Spanish Civil Code y más Apuntes en PDF de Derecho Civil solo en Docsity! Spanish Civil Code 704 PA Colección: Traducciones del derecho español Edita: Ministerio de Justicia- Secretaría General Técnica NIPO: 051-12-023-6 Traducción realizada por: D? Sofía de Ramón-Laca Clausen Traducción de las modificaciones: Clinter Traducciones e Interpretaciones S.A. Maquetación: Subdirección General de Documentación y Publicaciones Art.7 1. Rights must be exercised in accordance with the requirements of good faith. 2. The law does not support abuse of rights or antisocial exercise thereof. Any act or omission which, as a result of the author's intention, its purpose or the circumstances in which itis performed manifestly exceedsthe normal limits to exercise a right, with damage to a third party, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures preventing persistence in such abuse. CHAPTER IV Rules of private international law Art. 8 1. Criminal, police and public security statutes shall be binding on all persons within Spanish territory. 2. (repealed). Art. 9 1. 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. 2. 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 ofthem, chosen by both in an authentic instrument executed prior to the marriage ceremony; in the absence of such election, by the law ofthe place of habitual residence common to both immediately after the ceremony and, in the absence of such residence, by that ofthe place ofthe marriage ceremony. Legal separation and divorce shall be governed by the law provided in article 107. 3. 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. 4. The nature and content offiliation, including filiation 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. 5. International adoption shall be governed by the provisions of the International Adoption Law. Likewise, adoptions decreed by foreign authorities shall be effective in Spain in accordance with the provisions of the aforementioned International Adoption Law. 6. Guardianship and other institutions to protect incapable persons shall be regulated by the latter's national law. Notwithstanding the foregoing, provisional or urgent protection measures shall be governed by the law of his habitual residence. The formalities to constitute guardianship and other protection institutions in which Spanish judicial or administrative authorities should participate shall in any event be performed in accordance with Spanish law. Spanish law shall apply to the taking of protective and educational measures relating to abandoned minors or incapable persons within Spanish territory. 7. The right to support between relatives shall be governed by the common national law of the giver and the recipient of such support. Notwithstanding the foregoing, the law of the habitual residence of the person claiming such support shall apply where the latter cannot obtain it in accordance with the common national law. In the absence of both such laws, or where neither allows to obtain support, the domestic law of the authority hearing the claim shall apply. In the event of a change in the common nationality or habitual residence of the recipient of support, the new law shall apply from the time of such change. 8. Succession mortis causa shall be governed by the national law of the decedent at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator or bequeather at the time of execution thereof shall remain valid even if another lawisto govern the succession. Rights attributed by operation of law to the surviving spouse shall be governed by the same law which governs the effects of marriage, respecting at all times the forced share allocated to the descendants. 9. For the purposes ofthe 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. 10. The law of the place of habitual residence shall be deemed to be the personal law of persons without nationality or with indeterminate nationality. 11. The personal law corresponding to legal entities shall be determined by their nationality, and shall apply in all matters relating to their capacity, incorporation, representation, operation, transformation, dissolution and termination. In mergers between companies of different nationalities their respective personal laws shall be taken into account. Art. 10 1. Possession, ownership and other rights over immovable property and publicity thereof shall be governed by the law of the place where such property located. The same law shall apply to movable property. For the purposes of creating or assigning rights over goods in transit, the latter shall be deemed to be located at their place of dispatch, unless the sender and the recipient should have expressly or implicitly agreed to deem them to be located at their place of destination. 2. Vessels, aircraft and railway transport vehicles, and all rights created thereon, shall be subject to the law of their flag, matriculation or registration. Automobiles and other road transport vehicles shall be subject to the law of the place where they are located. 3. The issuance of securities shall be subject to the law of the place where it takes place. 4. Intellectual and industrial property rights shall be protected within Spanish territory in accordance with Spanish law, without prejudice to the provisions of international treaties and conventions to which Spain is a party. 5. The law to which the parties have expressly submitted shall apply to contractual obligations, provided that it has some connection with the transaction in question; in the absence thereof, the national law common to the parties shall apply; in the absence thereof, that of their common habitual residence and, lastly, the law of the place where the contract has been entered into. Notwithstanding the provisions ofthe preceding paragraph, in the absence of express submission, contracts relating toimmovable property shall be governed by the law of the place of their location, and sale and purchases of material movable property in commercial establishments by the law ofthe location of such establishments. 6. In the absence of express submission by the parties and without prejudice to the provisions of section 1 article 8, obligations resulting from a labour contract shall be governed by the law of the place where the services are provided. 7. Gifts shall in any event be governed by the national law ofthe donor. 8. Contracts for valuable consideration entered into in Spain by a foreigner without sufficient capacity according to his national law shall be valid for the purposes of Spanish law if the cause of his lack of capacity should not be recognised under Spanish law. This rule shall not apply to contracts relating to immovable property located abroad. 9. Non-contractual obligations shall be governed by the law of the place where the event from which they result took place. The management of another's business shall be governed by the law of the place of the manager's main activity. Unjust enrichment shall be governed by the law pursuant to which the transfer of assets in favour of the enriched person took place. 10. The law applicable to an obligation shall also govern the requirements for its performance and the consequences of its breach, and the extinction thereof. Notwithstanding the foregoing, the law of the place of performance shall apply to modes of enforcement which require judicial or administrative intervention. 11. Legal representation shall be governed by the law regulating the legal relationship from which result the representative's powers, voluntary representation, in the absence of express submission, by the law of the country where the powers conferred are to be exercised. Art. 11 1. Forms and solemnities of contracts, wills and other legal acts shall be governed by the law of the country in which they are executed. Notwithstanding the foregoing, those entered into according to the forms and solemnities required by the law applicable to their content, and those entered into in accordance with the personal law of the grantor or the law common to the parties shall also be valid. Likewise, acts and contracts relating to immovable property executed in accordance with the forms and solemnities of the place where the property is located shall also be valid. If such acts should be executed on board vessels or aircraft during navigation or flight, they shall be deemed entered into in the country of their flag, matriculation or registration. Military vessels and aircraft shall be deemed a part ofthe territory of the State to which they belong. 2. Ifthe law regulating the content of acts and contracts should require a particular form or solemnity for the validity thereof, this shall always apply, even ifthey are executed abroad. 3. Spanish law shall apply to contracts, wills and other legal acts authorised by Spanish diplomatic or consular officers abroad. Art. 12 1. Classification to determine the applicable conflict of laws rule shall always be made in accordance with Spanish law. 2. Referral to foreign law shall be deemed made to ¡ts material law, without taking into account any renvoi made by its conflict of laws rules to another law other than Spanish law 3. In no event shall foreign law apply where it is contrary to public policy. BOOK ONE On persons TITLEONE On Spaniards and foreigners Art. 17 1. The following persons are Spaniards by birth: a. Those born ofa Spanish mother or father. b. Those born in Spain of foreign parents if at least one of them should also have been born in Spain. The children ofa diplomatic or consular officer credentialed in Spain shall be excepted from this rule. c. Those born in Spain of foreign parents ifboth ofthem should be without nationality or if the legislation of neither should grant a nationality to the child. d. Those born in Spain of uncertain filiation. For these purposes, minors whose first known place of existence 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 themselves constitute grounds to acquire Spanish nationality. The interested party shall then be entitled to opt for Spanish nationality by birth within two years counting from such determination. Art. 18 The possession and continued use of Spanish nationality for ten years, in good faith and based on a title registered in the Civil Registry shall constitute grounds for the consolidation of Spanish nationality, even ¡f the title which originated should be annulled. Art. 19 1. A foreigner younger than eighteen adopted by a Spaniard shall acquire Spanish nationality by birth as of the adoption. 2. Ifthe adoptee should be older than eighteen, he may opt for Spanish nationality by birth within two years following the adoption. Art. 20 1. Persons who are or have been subject to the parental authority of a Spaniard, and those comprised within the last section of articles 17 and 19 shall be entitled to opt for the Spanish nationality. 2. The declaration of option shall be formulated: a. By the legal representative of the person who makes the option where the latter should be younger than fourteen or incapacitated. In this case the option shall require the authorisation of the officer in charge of the Civil Registry of the domicile of the person who makes the declaration, after issuance of an opinion by the Public Prosecutor. Such authorisation shall be granted in the interests ofthe minor or incapacitated person. b. By the interested party, assisted by his legal representative, if he is older than fourteen or when, in spite of his incapacity, he should be allowed to do so by the incapacitation judgement. c. By the interested party, by himself, if he is emancipated or older than eighteen. The right to exercise the option will expire when he turns twenty, but ¡if he should not be emancipated according to his personal law upon turning eighteen, the period to exercise the option shall be extended until two years after his emancipation. d. Bythe interested party, by himself, within two years following recovery of full legal capacity. The case where the right to exercise the option should have expired in accordance with section c) shall be excepted therefrom. Art. 21 1. Spanish nationality shall be acquired by naturalisation, granted discretionally pursuant to Royal Decree, when special circumstances concur in the interested party. 2. Spanish nationality shall also be acquired by residence in Spain, in 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 policy or national interest. 3. In both cases, the application may be formulated by: a. The interested party who is emancipated or older than eighteen. b. The person older than fourteen assisted by his legal representative. c. The legal representative of a person younger than fourteen. d. The legal representative of the incapacitated person, or the incapacitated person by himself or duly assisted, as results from the incapacitation judgement. In this case and in the former, the legal representative may only formulate the application if he previously obtains an authorisation in accordance with the provisions of letter a) section 2 of the preceding article. 4. The granting of nationality pursuant to naturalisation or residence shall expire after one hundred and eighty days ifthe interested party does not within such period appear before a competent officer to compl y with the requirements provided in article 23. Art. 22 1. Granting of nationality pursuant to residence shall require ten years' residence. Five years shall be sufficient for persons who have obtained asylum or refugees, and two years for citizens by birth of Latin-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, custody or care by a Spanish citizen or institution for two consecutive years, even if such situation should persist at the time of the application. d. The person who, at the time of the application, has been married to a Spaniard for one year and ¡is not legally or de facto separated. e. The widow or widower ofa Spaniard if, upon the death ofthe spouse they should not be legally or de facto separated. f. The person born outside of Spain from a father or mother who were originally Spanish. 3. In all cases residence must be legal, ongoing and immediately prior to the application. For the purposes of the provisions of letter d) of the preceding section, the spouse cohabiting with a Spanish diplomatic or consular officer credentialed 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 in 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. Art. 23 The following are common requirements for the validity of the acquisition of Spanish nationality by option, haturalisation or residence: a. Forthe person older than fourteen and capable of issuing a statement by himself to swear or promise fidelity to the King and obedience to the Constitution and the law. b. For the same person to declare that he renounces his prior nationality. Nationals of the countries mentioned in section 2 article 24 shall be excepted from this requirement. e. For the acquisition to be registered with the Spanish Civil Registry. Art. 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. 2. Such loss shall take place after the lapse of tree years, counting, respectively, from the acquisition of the foreign nationality or from the emancipation. Acquisition of the nationality of Latin American countries, Andorra, the Philippines, Equatorial Guinea or Portugal shall not be sufficient to cause the loss of Spanish nationality by birth. 3. In any event, emancipated Spaniards who expressly renounce their Spanish nationality shall lose it if they have another nationality and have their residence abroad. 4. Loss of Spanish nationality shall not take place pursuant to the provisions of this rule if Spain should be at war. Art. 25 1. Spaniards who are not Spanish by birth shall lose their nationality: a. When for a period of three years they should exclusively use the nationality which they should have declared to have renounced upon acquiring Spanish nationality. b. When they should voluntarily enter the armed forces or exercise public office in a foreign State against the Government's express prohibition. 2. A final judgement holding that the relevant party has incurred in misrepresentation, concealment or fraud in the acquisition of Spanish nationality shall cause such acquisition's being null and void, although no prejudicial effects The Church shall be governed in this matter by the provisions ofthe concordat between both powers, and educational and charitable establishments by the provisions of specific statutes. Art. 39 If, as a result of expiration of their legal term, or as a result of the fulfilment of the purpose for which they were created, or ofthe impossibility of applying to the former the activity and the means available to them, corporations, associations and foundations should cease to operate, their property shall be allocated as provided in the laws, articles of association or foundational articles. In the absence of any prior provision, such property shall be allocated to the performance of analogous purposes in the interests of the region, province or Municipality principally entitled to receive the benefits ofthe extinguished institutions. TITLE Ill On domicile Art. 40 The domicile of natural persons for the purposes ofthe exercise of civil rights and the performance of civil obligations shall be their place of habitual residence and, as the case may be, their domicile as determined by the Civil Procedural Law. The domicile of diplomats resident abroad as a result of their post, who enjoy the right of extraterritoriality shall be their last domicile in Spanish territory. Art. 41 Where neither the lawwhich created or recognised them orthe articles of association or foundational articles should establish the domicile of legal entities, it shall be deemed to be in the place where their legal representation is located, or where they exercise their main institutional functions. TITLE IV On marriage CHAPTER | On the promise of marriage Art. 42 The promise of marriage does not give rise to the obligation to marry or to comply with the provisions thereof in the event of failure to perform the marriage. Any claim purporting compliance thereof shall not be granted leave to proceed. Art. 43 Breach of a certain promise of marriage made by a person of legal age or by an emancipated minor, without cause, shall only give rise to the obligation to compensate the other party for expenses made and obligations contracted in consideration ofthe promised marriage. This action shall lapse by peremption after one year counting from the date of the refusal to enter into the marriage. CHAPTER Il On the requirements of marriage Art. 44 Men and women are entitled to marry in accordance with the provisions ofthis Code. Marriage shall have the same requirements and effects when both prospective spouses are ofthe same or different genders. Art. 45 There shall be no marriage without matrimonial consent. Any condition, term or mode limiting consent shall be deemed not to have been written. Art. 46 The following persons may not marry: 1. Non-emancipated minors. 2. Persons who are already joined in marriage. Art. 47 The following persons may also not marry each other: 1. Direct line relatives by consanguinity or adoption. 2. Collateral relatives by consanguinity up to the third degree. 3. Persons sentenced as authors of or accomplices in the murder ofthe spouse of either of them. Art. 48 The Minister of Justice may waive the impediment of murder of the former spouse at the request of one of the parties. The First Instance Judge may waive, with just cause and at the request of one of the parties, impediments relating to third degree collateral consanguinity and the age impediment for persons older than fourteen. The minor and his parents or carers must be heard in proceedings to waive the age impediment. A subsequent waiver shall validate the marriage from the date ofits performance, where neither party has applied to the court to have it declared null and void. CHAPTER lll On the form of performing the marriage SECTION ONE. GENERAL PROVISIONS Art. 49 Any Spaniard may marry inside or outside of Spain: 1. Before the Judge, Mayor or public officer provided in this Code. 2. According to the religious form provided in the law. He may also marry outside of Spain according to the form provided in the law ofthe place of the marriage ceremony. Art. 50 If both prospective spouses should be foreigners, the marriage may be performed in Spain in according to the form provided for Spaniards, or in compliance with the form set forth in the personal law applicable to either of them. SECTION TWO. ON MARRIAGE PERFORMED BEFORE A JUDGE, MAYOR OR PUBLIC OFFICER IN THEIR STEAD Art. 51 The following persons shall be competent to authorise the marriage: 1. The Judge in charge of the Civil Registry and the Mayor of the municipality where the marriage is performed, or the councillor in favour of whom the latter should have delegated. 2. In municipalities where such a Judge should not be in residence, the delegate designated pursuant to applicable regulations. 3. The diplomatic or consular officer in charge of the Civil Registry abroad. Art. 52 The following persons may authorise the marriage of persons in danger of death: 1. The Judge in charge ofthe Civil Registry, the delegate or the Mayor, even if the prospective spouses do not reside in the relevant court district. 2. In the absence of a Judge, for members of the military in military campaigns, the immediate superior Officer or Chief. Art. 65 Save for the provisions of article 63, in all other cases where the marriage should have been performed without processing the relevant record of the proceedings, the Judge or officer in charge of the Registry must ascertain whether the legal requirements for its performance are met prior to registration thereof. CHAPTER V On the rights and duties of the spouses Art. 66 The spouses are equal in rights and duties. Art. 67 The spouses must respect and assist each other and act in the family interest. Art. 68 The spouses are obliged to live together, to be faithful to one another and to come to one another's' aid. They must, furthermore, share domestic responsibilities and the care and attendance of parents and descendants and other dependents in their charge. Art. 69 It shall be presumed, unless there is evidence to the contrary, that the spouses live together. Art. 70 The spouses shall set the marital domicile by common consent and any discrepancy shall be resolved by the Judge, taking into account the family interest. Art. 71 Neither spouse may attribute to himself the representation of the other unless it is conferred. Art. 72 (No content) CHAPTER VI On the nullity of the marriage Art. 73 The marriage shall be null and void, whatever the form of its performance: 1. Marriage performed without matrimonial consent. 2. Marriage performed between the persons mentioned in articles 46 and 47, save in the event of waiver in accordance with article 48. 3. Marriage performed without the intervention ofthe Judge, Mayor or officer before whom it is to be performed, or without the presence of witnesses. 4. Marriage performed as a result of error as to the identity ofthe other spouse, or such personal qualities which, as a result of their importance, should have been decisive in the giving of consent. 5. Marriage performed under duress or serious fear. Art. 74 The action for annulment ofthe marriage shall correspond to the spouses, to the Public Prosecutor or to any person with a direct and legitimate interest therein, save as provided in the following articles. Art.75 If the grounds for nullity should be age, while the spouse remains underage the action may only be exercised by his parents, guardians or carers and, in any case, by the Public Prosecutor. On coming of age, the action may only be exercised by the spouse who was underage at the time, unless the spouses should have lived together during one year after he came of age. Art. 76 In cases of error, duress or serious fear, the action for annulment may only be exercised by the spouse who suffered the defect of consent. The action shall lapse by peremption and the marriage shall be validated if the spouses should have lived together for a year after the error should have disappeared, or the duress or the grounds for fear should have ceased. Art. 77 (No content) Art. 78 The judge shall not decree the annulment of a marriage as a result of a defect of form, where at least one of the spouses entered into it in good faith, save for the provisions of article 73 number 3. Art. 79 The declaration of the marriage being null and void shall not invalidate any effects already occurred in respect of the children and the spouse or spouses who acted in good faith. Good faith is presumed. Art. 80 Resolutions issued by Ecclesiastical Courts relating to the annulment of a canonical marriage, orthe Pope's decisions relating to ratified and non-consummated marriages shall be effective under Civil law, at the request of either party, if they are declared to adjust to the Law of the State in a resolution issued by the competent civil Judge in accordance with the conditions mentioned in article 954 of the Civil Procedural Law. CHAPTER VII On separation Art. 81 Whatever the form of performance ofthe marriage, judicial separation shall be decreed: 1. At the request of both spouses or of one with the consent of the other, after the lapse of three months from the performance of the marriage. The claimant must necessarily attach the proposal of settlement agreement, in accordance with article 90 of this Code. 2. At the request of one of the spouses, after the lapse ofthree months from the performance of the marriage. The lapse of this period shall not be required to file the claim when there is evidence of the existence of risk to the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the spouse filing the claim or the children in common or any member of the marriage. The claim shall attach a reasoned proposal of the measures which are to regulate the effects of the separation. Art. 82 (No content) Art. 83 The separation judgement gives rise to suspension of the life in common of the married spouses, and ends the possibility of binding the property of the other spouse in the exercise of domestic authority. Art. 84 Reconciliation shall end separation proceedings, and shall render without subsequent force and effect the matters resolved therein, but both spouses must separately makethe Judge who hears or has heard the case aware of such reconciliation. Notwithstanding the foregoing, any measures adopted in connection with the children shall be maintained or amended by court resolution, in the event of a just cause which justifies them. 20 8. Exceptionally, even in the absence of the circumstances provided in section five of this article, the Judge, at the request of one of the parties, with the favourable report ofthe Public Prosecutor, may decree the shared care and custody based on the argument that only thus is the minor's higher interest suitably protected. 9. The Judge, before adopting any of the decisions mentioned in the preceding paragraphs, ex officio or ex parte, may ask for the opinion of duly qualified specialists relating to the suitability of the form of exercise of parental authority and the minors' custody regime. Art. 93 The Judge shall in any event determine each parent's contribution to pay child support and shall adopt convenient measures to ensure the effectiveness and suitability of the payments to economic circumstances and to the needs ofthe children from time to time. If children who are of legal age or emancipated but have no own resources should live in the family home, the Judge, in the same resolution, shall set any support which may be due n accordance with articles 142 et seg. of this Code. Art. 94 The parent who does not live with his underage or incapacitated children shall be entitled to visit them, communicate with them and have them in his company. The Judge shall determine the time, manner and place to exercise visitation rights, which may be limited or suspended in the event that serious cireumstances should advise it or of serious and repeated breach ofthe duties imposed by the judicial resolution. Likewise, the Judge may determine, after hearing the parents and grandparents, who must give their consent, rights of communication and visitation between grandparents and grandchildren, in accordance with article 160 of this Code, always keeping in mind the interests of the minor. Art. 95 The final judgement shall give rise to the dissolution of the marriage property regime, as relates to the marriage property. If the judgement of annulment should declare the bad faith of one spouse only, the spouse who has acted in good faith may choose to apply the provisions relating to the participation regime to the liquidation of the marriage property regime, and the spouse acting in bad faith shall not be entitled to participate in the gains obtained by his consort. Art. 96 In the absence of an agreement between the spouses approved by the Judge, use of the family home and the objects of ordinary use therein shall correspond to the children and to the spouse in whose company they remain. Where some children remain in the company of one spouse and the rest with the other, the Judge shall resolve as deemed fit. In the absence of children, it may be resolved that the use of such property for the prudential time thus provided, shall correspond to the non-owner spouse, provided that, under the circumstances, this should be advisable, and that such spouse's interest should in greater need of protection. The consent of both parties or, as the case may be, judicial authorisation shall be required to dispose of the home and property mentioned above when their use should correspond to the non-owner spouse. 23 Art. 97 The spouse for whom the separation or divorce should give rise to an economic imbalance in relation with the other's position, involving a deterioration of his situation prior to the marriage, shall be entitled to compensation, which may consist of a temporary or indefinite allowance or a lump sum settlement, as determined in the settlement agreement or in the judgement In the absence of an agreement between the spouses, the Judge shall determine, pursuant to a judgement, the amount thereof, taking into account the following cireumstances: 1. Agreements reached by the spouses. 2. Age and state of health. 3. Professional qualifications and likelihood of getting a job. 4. Past and future dedication to the family. 5. Collaboration by working in the other spouse's commercial, industrial or professional activities. 6. The duration ofthe marriage and of their marital cohabitation. 7. The possible loss of pension rights. 8. Economic wealth and resources and the needs of each spouse. The judicial resolution shall set the bases to update the allowance and any guarantees to ensure its effectiveness. Art. 98 The spouse in good faith whose marriage has been declared null and void shall be entitled to compensation ifthere has been marital cohabitation, attending to the circumstances provided in article 97. Art. 99 At any time the parties may agree to replace the allowance set by the Judge in accordance with article 97 by the constitution of a life annuity, usufruct over certain property or payment of a capital sum in the form of property or cash. Art. 100 After the setting of the allowance and the bases to update it in the separation or divorce judgement, it may only be amended as a result of material alterations in the fortune of one or the other spouse. Art. 101 The right to receive the allowance shall be extinguished as a result of the removal ofthe cause which motivated it, or as a result ofthe creditor's marrying again or living with another person in a situation akin to marriage. The right to receive the allowance shall not be extinguished by the mere fact of the debtor's death. Notwithstanding the foregoing, the latter's heirs may request the Judge to reduce or suppress it if the estate cannot satisfy the requirements of the debt or ¡fit should affect their right to a forced share. 24 CHAPTER X On interim measures as a result of the claim for annulment, separation or divorce Art. 102 Upon admission of the claim for annulment, separation or divorce, the following effects take place by operation of law: 1. The spouses may live separately and the presumption of marital cohabitation shall cease. 2. Consents and powers of attorney granted by either spouse to the other are revoked. Likewise, save as otherwise agreed, the possibility of binding the exclusive property of the other spouse in the exercise of domestic powers shall cease. For these purposes, either party may request the relevant note to be made in the Civil Registry and, as the case may be, in the Property and Commercial Registries. Art. 103 Upon admission ofthe claim, the Judge, in the absence of a judicially approved agreement between both spouses shall adopt, after hearing the latter, the following measures: 1. To determine, in the interests of the children, with which spouse the children subject to the parental authority of both of them are to remain, and to make the appropriate decisions in accordance with the provisions of this Code and, in particular, the manner in which the spouse who does not exercise the custody and care of the children may comply with his obligation of watching over them, and the time, form and place in which he may communicate with them and have them in his company. Exceptionally, children may be entrusted to grandparents, relatives or other persons who consent to it, and, in the absence thereof, to a suitable institution, conferring on the latter the relevant guardianship duties, which they shall exercise under the judge's authority. Where there should be a risk of abduction of the minor by one of the spouses or by third parties, the necessary measures may be adopted and, in particular, the following: a) Prohibition to exit national territory, save with a prior judicial authorisation. b) Prohibition to issue a passport to the minor, or removal thereof if one should already have been issued. c) Submission of any change of domicile of the minor to prior judicial authorisation. 2. To determine, taking into account the family interest most requiring protection, which ofthe spouses shall continue using the family home and, likewise, after making an inventory thereof, which goods or objects pertaining to the appurtenances are to continue in the home and which are to be taken away by the other spouse, and the appropriate precautionary measures to preserve the rights of each of them. 3. To set the contribution of each spouse tothe marital expenses, including, if applicable, court costs, setting the basis to update any amounts and set any security, deposits, with holdings or other convenient precautionary measures, to ensure the enforcement ofthe amounts payable as a result by one spouse to the other. The work performed by one of the spouses to attend to the children in common subject to parental authority shall be considered a contribution to such expenses. 25 CHAPTER Il On determination and evidence of filiation SECTION ONE. GENERAL PROVISIONS Art. 112 Filiation shall be effective from the moment on which it takes place. Its legal determination shall have retroactive effect, provided that such retroactivity is compatible with the nature of such effects and that the Law does not provide otherwise. In any event, acts executed on behalf of the underage or incapable child by his legal representative before determination of filiation shall remain valid. Art. 113 Filiation shall be evidenced b y registration in the Civil Registry, by the document or judgement which legally determines it, by the matrimonial presumption of paternity and, in the absence ofthe preceding means, by possession of status. The provisions of the Civil Registry Law shall apply to the admission of evidence contrary to the registered entry. The determination of filiation shall not be effective where another contradictory filiation should be on record. Art. 114 Filiation entries may be rectified in accordance with the Civil Registry Law, without prejudice to the specific provisions in the present title on actions to challenge filiation. Likewise, entries which contradict the facts declared proven by a criminal judgement may also be rectified at any time. SECTION TWO. ON DETERMINATION OF MATRIMONIAL FILIATION Art. 115 Maternal and paternal matrimonial filiation shall be legally determined: 1. By registration of the birth together with that ofthe parents' marriage. 2. By a final judgement. Art. 116 Children born after the marriage is performed and before three hundred days after the dissolution thereof, or after the legal or de facto separation of the spouses, shall be presumed to be children ofthe husband. Art. 117 If the child should be born within 180 days following performance of the marriage, the husband may destroy the presumption by declaring otherwise in a public instrument executed within six months of his becoming aware ofthe birth. 28 The cases where he should have expressly or implicitly acknowledged his paternity, or should have been aware of the woman's pregnancy prior to performing the marriage shall be excepted from the foregoing, save when, in the latter case, such declaration in a public instrument should have been executed, with the consent of both spouses, prior to the marriage or subsequently thereto, within six months following the birth of the child. Art. 118 Even in the absence of the presumption of paternity of her husband as a result of the spouses' legal or de facto separation, filiation may be registered as matrimonial with the consent of both. Art. 119 Filiation shall become matrimonial from the date of the marriage of the parents, when the latter should take place subsequently to the birth ofthe child, provided that the fact ofthe filiation should be legally determined in accordance with the provisions of the following section. The provisions of the preceding paragraph shall, as the case may be, benefit the descendants of the deceased child. SECTION THREE. ON THE DETERMINATION OF NON-MATRIMONIAL FILIATION Art. 120 Non-matrimonial filiation shall be legally determined: 1. By recognition before the officer in charge ofthe Civil Registry, in a will or in another public document. 2. By resolution issued in proceedings processed in accordance with the Civil Registry legislation. 3. By final judgement. 4. In respect of the mother, where maternal filiation should be provided in the registration of birth performed within the requisite period, in accordance with the provisions of the Civil Registry Law. Art. 121 Recognition made by incapable persons or persons who cannot marry by reason of their age shall require judicial approval, after hearing the Public Prosecutor, to be valid. Art. 122 When a parent should recognise a child separately, he shall not be entitled to declare the identity ofthe other parent therein, unless this should already be legally determined. Art. 123 Recognition of a child who is of legal age shall not be effective unless the latter's express or implied consent is obtained. Art. 124 The effectiveness of recognition by a minor or incapable person shall require the express consent of his legal representative or judicial approval, after hearing the Public Prosecutor, and of the legally recognised parent. 29 No consent or approval shall be necessary ¡f recognition should have been made by will or within the period provided to register the birth. The registration of paternity thus practised may be suspended at the mere request of the mother during the year following the birth. Ifthe father should request confirmation of the entry, judicial approval, after hearing the Public Prosecutor, will be required. Art. 125 When the minor's or incapable person's parents should be siblings or consanguineous relatives in direct line, upon legal determination of filiation in respect of one, such filiation may only be legally determined in respect of the other prior judicial authorisation, which shall be granted, after hearing the Public Prosecutor, when it should be in the interest ofthe minor or incapable person. When the latter should reach full capacity, he may, pursuant to statement in a public instrument, invalidate this last determination if he should not have consented to it. Art. 126 Recognition of a child already deceased shall only be effective if his descendants should consent to it, by themselves or by means of their legal representatives. CHAPTER lll On filiation actions SECTION ONE. GENERAL PROVISIONS Art. 127 to 130 (Repealed) SECTION TWO. ON CLAIMS Art. 131 Any person with a legitimate interest shall be entitled to claim declaration of a filiation manifested by constant possession of status. The case where the claimed filiation should contradict another filiation legally determined shall be excepted therefrom. Art. 132 In the absence of the corresponding possession of status, the claim of matrimonial filiation, which shall not be subject to a statute of limitations, corresponds to the father, the mother or the child. If the child should die before the lapse of four years from his reaching full capacity, or during the year following discovery ofthe evidence on which the claim should be based, the action shall pass to his heirs for the time required to complete such periods. 30 1. To the spouse. 2. To descendants in the nearest degree. 3. To ascendants, also in the nearest degree. 4. To siblings, provided that uterine or consanguine siblings shall be obliged in the last place. Degree between descendants and ascendants shall be regulated by the order in which they are called to intestate succession of the person entitled to support. Art. 145 Where the obligation to provide support should fall on two or more persons, payment of the allowance shall be shared between them in proportion to their respective wealth. Notwithstanding the foregoing, in case of urgent need and as a result of special circumstances, the Judge may oblige a single one ofthem to provide it provisionally, without prejudice to his rights to claim from the remaining obligors the part which corresponds to them. When two or more recipient of supports should claim support atthe same time from the same person legally obliged to provide them, and such person should not have sufficient wealth to attend to all ofthem, the order provided in the preceding article shall be followed, unless the recipient of supports should be the spouse and a child subject to parental authority, in which case the latter shall be preferred over the former. Art. 146 The amount of the support shall be proportional to the estate or resources of the person who provides it and the needs of the person receiving it. Art. 147 Support, in the cases mentioned in the preceding article, shall be proportionally reduced or increased according to the increase or reduction in the needs of the recipient of support and the wealth of the person obliged to satisfy it. Art. 148 The obligation to provide support shall be payable from the time on which the person entitled to receive them should need them to subsist; but they shall not be paid until after the date on which the relevant claim should be filed Payment shall be verified monthly in advance and, upon the death ofthe recipient of support, his heirs shall not be obliged to return any amounts received by the latter in advance. The Judge, at the request ofthe recipient of support or ofthe Public Prosecutor, shall issue, on an urgent basis, the relevant precautionary measures to ensure payment of the advances made by a public Entity or by another person, and to provide for future needs. Art. 149 The person obliged to provide support may, at his discretion, satisfy it either by paying the allowance set, or receiving and keeping in his own home the person entitled to receive it. 33 This choice shall not be possible to the extent that it contradicts the cohabitation arrangements provided under applicable law or by judicial resolution for the recipient of support. lt may also be rejected in the event of just cause or where it should be prejudicial to the interests of the underage recipient of support. Art. 150 The obligation to provide support shall cease with the death ofthe obligor, even if he should provide itin compliance with a final judgement. Art. 151 The right to receive support cannot be waived or transferred to a third party. Neither may it be offset against the amounts owed by the recipient of support to the person obliged to provide it. However, outstanding support allowances may be subject to set-off and waived, and the right to claim them may be transferred for valuable consideration or as a gift. Art. 152 The obligation to provide support shall also cease: 1. By the death of the recipient of support. 2. When the wealth ofthe person obliged to provide it should have been reduced to a point where he is unable to satisfy it without neglecting his own needs and those of his family 3. When the recipient of support is able to carry out a trade, profession or industry, or has obtained a position or improved in wealth, so that the support allowance is no longer necessary for his subsistence. 4. When the recipient of support, whether or not a forced heir, should have committed any offence giving rise to disinheritance. 5. Where the recipient of support is a descendant of the person obliged to provide support, and the latter's need should arise from his bad conduct or lack of application at work, while this cause subsists. Art. 153 The preceding provisions shall apply to the remaining cases where, pursuant to this Code, to a will or to an agreement, a person should be entitled to receive support, save as otherwise agreed, ordered by the testator or provided by the law for the relevant special case. 34 TITLE Vil On parent-child relations CHAPTER ONE General provisions Art. 154 Non-emancipated children shall be under the parents' parental authority. Parental authority shall be exercised always for the benefit of the children, according to their personality, and respecting their physical and psychological integrity. This authority comprises the following duties and powers: 1. Tolook after them, to havethem in their company, feed them, educate them and provide them with a comprehensive upbringing. 2. To represent them and to manage their property. If the children should have sufficient judgement, they must be heard always before adopting decisions that affect them. Parents may, in the exercise of their powers, request the assistance of the authorities. Art. 155 Children must: 1. Obey their parents while they remain under their parental authority and always respect them. 2. Equitably contribute, according to their possibilities, to the discharge of family expenses while they live with them. Art. 156 Parental authority shall be exercised jointly by both parents, or by one ofthem with the express or implied consent of the other. Acts performed by one of them according to social practice and circumstances or in situations of urgent need shall be valid. In the event of disagreement, either of them may appear before the Judge, who, after hearing both ofthem and the child, if he should have sufficient judgement and, as the case may be, if he should be older than twelve, shall confer without further recourse the ability to decide to the father or the mother. In the event of repeated disagreement, or if there should be any other cause which severely hinders the exercise of parental authority, he may confer it in whole or in part to one of the parents, or distribute duties between them. This measure shall remain in force during the period provided, which may never exceed two years. In the cases provided in the preceding paragraphs, in respect of third parties in good faith, each parent shall be presumed to act in the ordinary exercise parental authority with the consent of the other. 35 2. Property acquired by succession when one or both ofthe persons exercising parental authority should have been justly disinherited or should have been unable to inherit as a result of being unworthy, which shall be administered by the person designated by the decedent and, in the absence thereof, successively, by the other parent or by a specially appointed judicial administrator. 3. Property acquired by the child older than sixteen by his work or industry. Ordinary acts of administration shall be performed by the child, who shall need the parents' consent for acts exceeding the former. Art. 165 The fruits of the property ofthe non-emancipated child, and anything acquired by his work or industry shall always belong to him. Notwithstanding the foregoing, the parents may destine the property of the minor who lives with both or with one of them, in the corresponding part, to the discharge of family expenses, and they shall not be obliged to render accounts of any property consumed for such purposes. For these purposes, the fruits of the property not administered by the parents shall be delivered to then. Fruits of property mentioned in numbers one and two of the preceding article and those gifted or left to children especially for their education or career shall be excepted from the above, but, if the parents should lack of means, they may request the Judge to have an equitable part delivered to them. Art. 166 Parents may not waive the rights held by the children, nor dispose of or encumber any real estate properties, commercial or industrial establishments, precious objects and securities, except for preferred subscription right over shares, save for a just cause of utility or necessity, prior authorisation of the Judge of their domicile, after hearing the Public Prosecutor. Parents must obtain judicial authorisation to reject an inheritance or legacy left to the child. If the Judge should refuse the authorisation, the inheritance may only be accepted under the benefit of inventory. No judicial authorisation shall be required ifthe minor should be sixteen years of age and should consent in a public document, nor to dispose of securities, provided that the proceeds are reinvested in safe goods or securities. Art. 167 Where the parents' administration should endanger the net assets of the child, the Judge, at the request of the child himself, of the Public Prosecutor or of any relative of the minor, may issue any orders deemed necessary for the safety and safekeeping of the property, require security or a bond for their continuation in the administration thereof or even appoint an Administrator. Art. 168 Upon termination of parental authority, the children may require the parents to render accounts ofthe administration performed over the property until then. The action to enforce this obligation shall be statute barred after three years. In the event of loss or impairment ofthe property as a result of wilful misconduct or gross negligence, the parents shall be liable for any damages suffered. 38 CHAPTER IV On termination of parental authority Art. 169 Parental authority shall end: 1. By the death or declaration of death of the parents or the child. 2. By emancipation. 3. By the adoption of the child. Art. 170 The father or the mother may be deprived in whole or in part of their authority pursuant to a judgement on grounds ofthe breach of the duties inherent thereto, or issued in criminal or matrimonial proceedings. The Courts may, for the benefit and in the interest of the child, decide the recovery of parental authority when the cause which motivated the deprivation should have ceased. Art. 171 Parental authority over children who should have been incapacitated shall be extended, by operation of Law, upon their coming of age. If a child who is of legal age, unmarried, and lives in the company of his parents or of any of them should be incapacitated, parental authority shall be restored, and shall be exercised by the person who would be entitled to do so if the child were underage. Extended parental authority in any of these two forms shall be exercised subject to the specific provisions of the incapacitation resolution and, on a subsidiary basis, to the rules of the present Title. Extended parental authority shall terminate: 1. By the death or declaration of death of both parents or the child. 2. By adoption of the child. 3. By declaration of the incapacity having ceased. 4. By marriage of the incapacitated person. If, upon termination of the extended parental authority, the incapacitation should subsist, guardianship or conservatorship shall be appointed, as applicable. 39 CHAPTER V On adoption and other forms of protection of minors SECTION ONE. ON CUSTODY AND FOSTER CARE OF MINORS Art. 172 1. When the public entity entrusted with the protection of minors in the respective territory should become aware that a minor is in a situation of neglect, it shall have by operation of Law the guardianship of such minor, and must adopt the necessary protection measures for his custody, making the Public Prosecutor aware of this, and giving notice to the parents, guardians or carers in due legal form, within forty eight hours. Whenever possible, at the time of giving such notice, they shall be informed in their presence and in a clear and comprehensible manner of the causes which have given rise to the Administration's intervention and the possible effects of the decision adopted. A situation of neglect shall be deemed to exist de facto as a result of the breach or the impossible or inadequate exercise of the protection duties set forth by the laws for the custody of minors, when they should be deprived ofthe necessary moral or material assistance. The assumption of guardianship by the public entity shall entail the suspension of parental authority or ordinary guardianship. Notwithstanding the foregoing, acts of patrimonial content performed by the parents or guardians on behalf of the minor which are beneficial to the latter shall be valid. 2. When the parents or guardians, as a result of serious circumstances, cannot take care of the minor, they may request the competent public entity to assume his custody for the necessary period of time. The transfer of custody shall be set forth in writing, expressly noting that the parents or guardians have been informed of their responsibilities they continue to hold in respect of the child, and the manner in which such custody will be exercised by the Administration. Any subsequent variation in the form of exercise shall be duly grounded and communicated to the former, and to the Public Prosecutor. Likewise, the public entity shall assume custody when so resolved by the Judge in cases where it is legally applicable. 3. Custody assumed at the request of parents or guardians or as a result of guardianship assumed by operation of law shall be performed by means of family foster care or residential care. Family foster care shall be exercised by the person or persons determined by the public entity. Residential care shall be exercised by the Director of the centre where the minor is taken in. Within two months, the parents or guardians of the minor may challenge the administrative resolution deciding the foster care if they consider that the form of care decided is not the most convenient for the minor, or ifthere should exist other persons within the family circle more suitable to those designated. 4. The interest of the minor shall always be sought, and the Administration shall try to achieve his reintegration into his own family, if not contrary to such interest, and to have siblings entrusted to the custody ofthe same institution or person. 5. If serious problems should arise in the cohabitation between the minor and the person or persons who have been entrusted with his custody, the minor or an interested party may request his removal therefrom. 6. Resolutions which acknowledge the existence of neglect and declare the assumption of guardianship b y operation of law may be appealed before the civil jurisdiction, within the period and subject to the conditions set forth in the Civil Procedural Law, without the need to file a prior administrative claim. 40 The Public Prosecutor must check the situation of the minor at least every semester and shall propose to the Judge any protection measures deemed necessary. 3. The Public Prosecutor's vigilance shall not exempt the public entity from its responsibility vis-a-vis the minor and from its obligation to make the Public Prosecutor aware of any anomalies observed. SECTION TWO. ON ADOPTION Art. 175 1. Adoption shall require that the prospective adoptive parent is older than 25. In an adoption by both spouses, it will be sufficient for one ofthem to have reached such age. In any event, the prospective adoptive parents must be at least fourteen years older than the adoptee. 2. Only non-emancipated minors may be adopted. As an exception, it will be possible to adopt a person of legal age or an emancipated minor when, immediately prior to the emancipation, there should have existed an uninterrupted situation of foster care or of cohabitation, initiated before the prospective adoptee became fourteen. 3. One may not adopt: 1.A descendant. 2. A relative in the second degree in the collateral line by consanguinity or affinity. 3. A ward by his guardian until final approval of the accounts ofthe guardianship. 4. Nobody may be adopted by more than one person, unless the adoption is performed jointly or successively by both spouses. Marriage performed subsequently to the adoption shall allow the spouse to adopt the children of his consort. In the event of death of the adoptive parent, or when the adoptive parent should incur in the grounds for exclusion provided in article 179, a new adoption of the adoptee shall be possible. Art. 176 1. The adoption shall be constituted by judicial resolution, which shall take into account always the interests of the prospective adoptee and the suitability ofthe prospective adoptive parent or parents for the exercise of parental authority. 2. To initiate the adoption proceedings, a prior proposal of the public entity shall be required in favour of the prospective adoptive parent or parents who have been declared suitable to exercise parental authority by the public entity. The declaration of suitability may be prior to the proposal. Notwithstanding the foregoing, no proposal shall be required when the prospective adoptee meets any of the following circumstances: 1. Being an orphan and a relative of the prospective adoptive parent in the third degree by consanguinity or affinity. 2. Being a child ofthe consort of the prospective adoptive parent. 3. Having been in legal foster care under a measure of a pre-adoptive foster care, or having been under his guardianship for the same time. 4. Being of legal age or an emancipated minor. 3. In the first three cases ofthe preceding section, the adoption may be constituted even if the prospective adoptive parent should have deceased, ¡fthe latter should already have given his consent before the Judge. In this case, the judicial resolution shall have retroactive effect to the date of such consent. 43 Art. 177 1. The prospective adoptive parent or parents and the adoptee older than twelve must consent to the adoption in the presence ofthe Judge. 2. The following persons must consent to the adoption in the manner set forth in the Civil Procedural Law: 1. The spouse of the prospective adoptive parent, save in the event of legal separation pursuant to a final judgement or de facto separation by mutual consent set forth in a public instrument. 2. The parents of the prospective adoptee who is not emancipated, unless they should be deprived of parental authority by final judgement or they should incur in a legal cause for such deprivation. Such situation may only be appreciated in contradictory judicial proceedings, which may be processed as provided in article 1827 ofthe Civil Procedural Law. Such consent shall not be required when it is impossible for those who must provide it to do so, which impossibility shall be duly grounded in the judicial resolution constituting the adoption. The consent of the mother may not be given until after 30 days have elapsed from the birth. 3. The following persons must simply be heard by the Judge: . Parents who have not been deprived of parental authority where their consent should not be necessary for the adoption. 2. The guardian and, as the case may be, the carer or carers. 3. The adoptee who ¡is younger than twelve, if he should have sufficient judgement. 4. The public entity, in order to appreciate the suitability of the prospective adoptive parent, when the adoptee should have been legally under the former's foster care for more than one year. Art. 178 1. The adoption gives rise to the extinction of any legal relations between the adoptee and his former family. 2. As an exception, legal relations with the family of the parent shall subsist, as applicable, in the following cases: 1. When the adoptee should be the child ofthe spouse of the prospective adoptive parent, even if the consort should have died. 2. When only one of the parents has been legally determined, provided that it should have been requested by the prospective adoptive parent, the adoptee older than twelve and the parent whose relation therewith is to persist. 3. The provisions of the preceding sections shall be understood to be without prejudice to the provisions relating to matrimonial impediments. Art. 179 1. The Judge, at the request of the Public Prosecutor, ofthe adoptee or of his legal representative, shall resolve that the adoptive parent who incurs in a cause for deprivation of parental authority shall be excluded from guardianship duties and from the rights to which he is entitled pursuant to the Law in respect of the adoptee or his descendants, or to their estates. 2. Upon reaching full capacity, such exclusion may only be requested by the adoptee, within the following two years. 44 3. These restrictions shall cease to be effective by determination of the child himself upon reaching full capacity. Art. 180 1. Adoption is irrevocable. 2. The Judge shall resolve the extinction of adoption atthe request of the father or the mother who, without fault on their part, should not have taken part in the proceedings in the terms expressed in article 177. The claim shall also be required to be filed within two years following the adoption, and that the requested extinction does not cause serious harm to the minor. 3. Termination ofthe adoption shall not be a cause of loss of nationality or civil residence acquired, nor shall it affect any patrimonial effects which should have taken place before. 4, Determination ofthe filiation corresponding to the adoptee by birth shall not affect adoption. 5.Adopted persons, after reaching legal age or while being underage, represented by their parents, shall be entitled to know any data relating to their biological origin. Spanish childcare Public Entities, prior notice to any affected persons, shall provide, through their specialised services, the advice and assistance required by any applicants to bring this right to effect. TITLE Vil! On absence CHAPTER ONE Declaration of absence and its effects Art. 181 In any event, upon the disappearance of the person from his domicile or from his last place of residence, without having any further news of him, the Judge may, at the request of the interested party or of the Public Prosecutor, appoint a defender to protect and represent the disappeared person in court or in any business which does not admit delay without serious detriment. Those cases where the former should already have legal or voluntary representation in accordance with article 183 shall be excepted. The present spouse who is of legal age and not legally separated shall be the ex officio defender and representative of the disappeared person; and, in the absence thereof, the nearest relative up to the fourth degree, also of legal age. In the absence of relatives, lack of presence thereof or notorious urgency, the Judge shall appoint a solvent person with good background, after hearing the Public Prosecutor. He may also adopt, at his proof discretion, any necessary orders for the preservation of the assets. Art. 182 The following persons shall have the obligation to promote and request the legal declaration of absence, without order of preference: 1. The spouse ofthe absentee who is not legally separated from him. 2. Consanguineous relatives up to the fourth degree. 45 Art. 192 The provisions of the preceding article shall be understood to be without prejudice of any actions to claim an inheritance or any rights to which the absentee, his representatives or his successors should be entitled. Such rights shall only be extinguished by the passage of the time provided as statute of limitations. Any entry in the Registry of any immovable property accruing in favour of any co-heirs shall express the cireumstance that they remain subject to the provisions of this article and the preceding one. CHAPTER Il On the declaration of death Art. 193 The declaration of death shall apply: 1.Afterten years have elapsed sincethe last news ofthe absentee or, inthe absence thereof, since his disappearance. 2. After five years have elapsed since the last news of him or, in the absence thereof, since his disappearance, if, upon expiration of such period, the absentee should have reached seventy five. The aforementioned periods shall be calculated from the expiration of the calendar year on which the last news of him was received or, in the absence thereof, from the year of his disappearance. 3. After two years have elapsed, counted from date to date, from an imminent risk of death as a result of accident or violence, suffered by a person without receiving any news of him subsequently to the accident or the violence. Violence shall be presumed if, in a state of political or social unrest, a person should have disappeared without receiving any news of him during the aforementioned period, provided that six months should have elapsed from the end of such unrest. Art. 194 The declaration of death shall also apply: 1. In respect of persons who, belonging to an armed contingent or linked thereto as voluntary ancillary offices of, or as reporters, should have taken part in campaign operations and should have disappeared in them, after the lapse of two years, counted from the date of the peace treaty and, in the absence thereof, from the official declaration of the end ofthe war. 2. In respect of those persons who should be on board a shipwreck or who should have disappeared as a result of immersion in the sea, after the lapse of three months from the ascertainment of the shipwreck or disappearance without having news ofthem. The shipwreck shall be presumed to have occurred ifthe vessel does not reach its destination or, if, lacking a fixed destination, it should not return, in both cases after the lapse of six months counting from the last news received of it or, in the absence thereof, from the date of departure of the vessel from the initial port of the journey. 3. Of those persons who should be on board an aeroplane crash, after the lapse of three months from the ascertainment of the crash, without having had news of them or, in the event that human remains should have been found, if they should have been unable to be identified. An aeroplane crash shall be deemed to have occurred if, in a flight over the sea, or desert or uninhabited areas, six months should have elapsed from the last news received from the persons or from the aircraft and, in the absence 48 thereof, from the date on which the journey should have begun. If the flight should be in stages, the aforementioned period shall be computed from the point of takeoff from which the last news should have been received. Art. 195 The declaration of death shall put an end to the situation of legal absence, but until such declaration takes place, the absentee shall be presumed to have lived until the time on which he must be reputed to have died, save as otherwise determined in an investigation. Any declaration of death shall express the date from which the death is deemed to have occurred, in accordance with the provisions of the preceding articles, unless there is evidence to the contrary. Art. 196 Upon the declaration of death of the absentee's becoming final, succession to his estate shall be opened, and such estate shall be adjudicated pursuant to the formalities of testamentary or intestate proceedings, or out of court. The heirs may not dispose of the inheritance pursuant to gift until five years after the declaration of death. Until the lapse ofthis same period, no legacies, if any, shall be handed over, and the legatees shall not be entitled to request them, save for pious donations for the soul ofthe deceased, or legacies in favour of Charitable Institutions. The successors shall have the inescapable obligation, even if, there only being one ofthem, no partition should be necessary, to write a detailed inventory of movable property and a description of any real estate property before a notary public. Art. 197 If, after the declaration of death, the absentee should appear or his existence should be proved, he shall recover his property in its current condition, and shall be entitled to the price of any properties sold, or to any properties acquired with such price, but may not claim from his successors any rents, fruits or products obtained from the properties of his estate, until the day of his presence or of the declaration of not having died. CHAPTER lll On the Central Registry of absentees Art. 198 The Central and public absentee registry shall register: 1. Judicial declarations of legal absence. 2. Judicial declarations of death. 3. Legitimate and appointed representations resolved by the courts and termination thereof. 4. A mention, including all circumstances thereof, of the place, date, executors and authorising Notary Public ofthe inventories of movable property and description of immovable properties provided in this title. 5. A mention, including all circumstances thereof, ofthe order conferring such representation, and of the place, date, executors and authorising Notary Public of any public deeds of transfer and encumbrance made, with judicial authorisation, by absentees' legitimate or appointed representatives; and 49 6. A mention, including all cireumstances thereof, of the place, date, executors and authorising Notary Public, ofthe public deed of description or inventory of properties, and of the public deeds of partition and adjudication executed pursuant to the declaration of death, or the deeds of validation ofthe partitional papers, as the case may be. TITLE IX On incapacitation Art. 199 No one may be declared incapable save pursuant to a court judgement pursuant to the causes set forth in the Law. Art. 200 Persistent physical or mental illnesses or deficiencies which prevent a person from governing himself shall be causes for incapacitation. Art. 201 Minors may be incapacitated if a cause for incapacitation should apply to them and ¡is reasonably expected to persist after they come of age. Art. 202 to 214 (Abrogated) TITLE X On guardianship, conservatorship and custody of minors and incapacitated persons CHAPTER ONE General provisions Art. 215 The custody and protection ofthe person and property, or only ofthe person or the property of minors or incapacitated persons shall be performed, where applicable, by means of the following: 1. Guardianship. 2. Conservatorship. 3. The judicial defender. 50 Art. 227 A person disposing of property as a gift in favour of a minor or incapacitated person may establish the rules governing the administration thereof and designate the person or persons who are to exercise it. Duties not conferred upon the administrator shall correspond to the guardian. Art. 228 If the Public Prosecutor or the competent Judge should become aware of any person in the territory of their jurisdiction who ought to be subject to guardianship, the former shall request and the latter shall rule, even ex officio, the constitution of the guardianship. Art. 229 Relatives called to exercise guardianship and the person in whose custody the minor or incapacitated person should live shall be obliged to promote the constitution ofthe guardianship and, if they should fail to do so, they shall be joint and severally liable for any damages caused. Art. 230 Any person may make the Public Prosecutor or the judicial authority aware of the fact which determines the necessity of the guardianship. Art. 231 The Judge shall constitute the guardianship, after hearing the nearest relatives, any persons deemed convenient and, in any event, the ward, if he should have sufficient judgement, and always if he should be older than twelve. Art. 232 Guardianship shall be exercised under the supervision of the Public Prosecutor, who shall act ex officio or at the request of any interested party. He may require the guardian to inform him of the situation of the minor or incapacitated person and of the state of administration ofthe guardianship at any time. Art. 233 The Judge may establish, in the resolution constituting the guardianship or in another subsequent resolution, any supervision and control measures deemed suitable for the benefit ofthe ward. Likewise, he may at any time require the tutor to inform him on the situation of the minor or incapacitated person and the state of administration of the guardianship. SECTION TWO. ON DESIGNATION OF THE GUARDIANSHIP AND APPOINTMENT OF THE GUARDIAN Art. 234 The following persons shall be preferred to appoint a guardian: 1. The person designated by the ward himself, in accordance with the second paragraph of article 223. 53 2. The spouse who lives with the ward. 3. The parents. 4. The person or persons designated by the latter in their testamentary dispositions. 5. The descendant, ascendant or sibling designated by the judge. Exceptionally, the Judge, in a reasoned resolution, may alter the order ofthe preceding paragraph or dispense with all persons mentioned therein, ¡if the benefit ofthe minor or incapacitated person should require it. Integration in the family life of the guardian shall be deemed beneficial for the minor. Art. 235 In the absence of the persons mentioned in the preceding article, the Judge shall designate as guardian the person he considers to be most suitable, as a result of his relations with the ward and for the benefit of the latter. Art. 236 Guardianship shall be exercised by single guardian, except: 1. Where, as a result of special circumstances in the person of the ward or his property, it should be convenient to separate into different positions a guardian for his person and a guardian for his property, each of whom shall act independently within the scope of his competence, although decisions concerning both must be taken jointly. 2. Where guardianship corresponds to the father and mother, it shall be exercised by both jointly in an analogous manner to parental authority. 3. If a person should be designated guardian of his sibling's children and it should be considered convenient that the spouse ofthe guardian should also exercise such guardianship. 4. Where the Judge should appoint as guardians the persons designated by the parents of the ward in a will or notarial public document to exercise the guardianship jointly. Art. 237 In the case of number 4 of the preceding article, if the testator should have expressly provided it, and, in the case of number 2, if the parents should request it, the Judge may, upon appointing the guardians, rule that they may exercise the powers inherent to the guardianship joint and severally. In the absence of such kind of appointment, in all remaining cases and without prejudice to the provisions of numbers 1 and 2, the powers ofthe guardianship entrusted to several guardians must be exercised by them acting jointly, but any acts performed with the agreement of the largest number shall be valid. In the absence of such agreement, the Judge, after hearing the guardians and the ward ¡f he should have sufficient judgement, shall rule, without further appeal, whatever he deems convenient. In the event that disagreements should be repeated and should seriously hinder the exercise of the guardianship, the Judge may reorganise the operation thereof and even appoint a new guardian. Art. 237 bis If the guardians should have been granted powers to act jointly and any of them should incur in an incompatibility or conflict of interest in respect of any acts or contracts, these may be performed by the other guardian or, ifthere should be several, by the rest of them jointly. 54 Art. 238 In cases where, for any reason, any of the guardians should be removed, the guardianship shall subsist with the remaining guardians, unless otherwise expressly provided upon making the appointment. Art. 239 The guardianship of neglected minors shall correspond by operation of Law to the entity mentioned in article 172. Notwithstanding the foregoing, a guardian shall be appointed in accordance with the ordinary rules in the event of existence of persons who, as a result of their relations with the minor or other circumstances, may assume the guardianship for the benefit of the former. The public entity entrusted with the guardianship of incapable persons in the respective territory when none of the persons provided in article 234 should be appointed guardian, shall assume by operation of lawthe guardianship of the incapable person when the latter should be in a situation of neglect. A de facto situation of neglect shall be deemed to exist as a result of the breach or of the impossible or inadequate exercise of the duties attributed in accordance with the laws, when such incapable persons are deprived ofthe necessary moral or material assistance. Art. 240 If it should be necessary to designate a guardian for several siblings, the Judge shall try to appoint a single person. Art. 241 All persons who are in full possession of their civil rights and who do not incur in any of the grounds for ineligibility set forth in the following articles may be guardians. Art. 242 Likewise, not-for-profit legal entities whose purposes include the protection of minors and incapacitated persons may also be guardians. Art. 243 The following persons may not be guardians: 1. Persons deprived or suspended from the exercise of parental authority or from the rights of providing custody and education, in whole or in part, pursuant to a judicial resolution. 2. Persons who have been legally removed from a prior guardianship. 3. Persons sentenced to a term of imprisonment, while they are serving their sentence. 4. Persons sentenced for any crime which makes one justifiably suppose that they shall not perform the guardianship properly. Art. 244 The following persons may also not be guardians: 1. Persons who incur in absolute de facto impossibility. 55 Notwithstanding the foregoing, the public entity that undertakes the guardianship of a minor by operation of law or performs such guardianship as a result of a judicial resolution shall not be required to provide a bond. Art. 261 The Judge may also, at any time and for a just cause, render ineffective or amend in whole or in part any security provided. Art. 262 The guardian shall be obliged to make an inventory of the property of the ward within sixty days, counting from the date on which he should have taken possession of his duties. Art. 263 The judicial authority may extend this period in a reasoned resolution ifthere are grounds to do so. Art. 264 The inventory shall be made in court with the intervention of the Public Prosecutor, summoning any persons which the Judge deems convenient. Art. 265 Any money, jewellery, precious objects and securities or documents which, in the opinion of the judicial authority, should not remain in the guardian's possession, shall be consigned in an establishment destined for such purposes. Any expenses resulting from the foregoing measures shall be borne by the ward's property. Art. 266 The guardian who does not include in the inventory any credits held against the ward shall be deemed to waive his right thereto. Art. 267 The guardian ¡s the representative of the minor or incapacitated person, save for such acts which the latter may perform by himself, pursuant to the express provision ofthe Law or of the incapacitation judgement. Art. 268 Guardians shall exercise their position in accordance with the personality of their wards, respecting their physical and psychological integrity. When it should be necessary they may request the assistance of the authority for the exercise of their guardianship. Art. 269 The guardian shall be obliged to watch over his ward and, in particular: 58 1. To provide him with support. 2. To educate the minor and provide him with a comprehensive upbringing. 3. To promote the ward's acquisition or recovery of civil capacity, and his insertion into society. 4. To inform me Judge on an annual basis on the minor's or incapacitated person's situation and to render accounts of his administration on an annual basis. Art. 270 The single guardian and, as the case may be, the guardian of the ward's property, is the legal administrator of the patrimony of the ward and is obliged to exercise such administration with the diligence of an orderly paterfamilias. Art. 271 The guardian shall require judicial authorisation: 1. To confine the ward in a mental health or special education or training establishment. 2. To dispose of or encumber real estate properties, commercial or industrial undertakings, precious objects and securities belonging to minors or incapacitated persons, or to enter into contracts or perform acts which are acts of disposal and are capable of registration. The sale of preferred subscription rights relating to shares shall be excepted from the above. 3. To waive rights, and to settle or submit to arbitration any matters in which the ward should have an interest. 4. To accept any inheritance without the benefit of inventory, or to reject the inheritance or liberalities. 5. To make extraordinary expenses in property. 6. To file a claim in the name of the ward, save for urgent matters or those involving a small amount. 7. To lease property for a period exceeding six years. 8. To lend and borrow money. 9. To dispose as a gift of property or rights belonging to the ward. 10. To assign to third parties any credits held by the ward against him, or to acquire for valuable consideration any credits against the ward held by third parties. Art. 272 Partition of the estate or the division of common property performed by the guardian shall not require judicial authorisation, but, once practised, shall require judicial approval. Art. 273 Before authorising or approving any of the acts included in the two preceding articles, the Judge shall hear the Public Prosecutor and the ward, if he should be older than twelve or ifthe Judge should deem it convenient, and shall commission any reports requested or any he deems suitable. 59 Art. 274 The guardian shall be entitled to remuneration, provided that the assets of the ward should allow it. The Judge shall be in charge of setting the amount thereof and the manner of perceiving it, for which he shall take into account the work to be performed and the value and returns of the property, to the extent possible attempting to achieve an amount of the remuneration not lower than 4% or higher than 20% of the net yield ofthe property. Art. 275 Only parents, in their testamentary dispositions, may establish that the guardian is entitled to appropriate the fruits of the ward's property in exchange for providing support, save if the Judge, in a duly reasoned resolution, should rule otherwise. SECTION FOUR. ON TERMINATION OF THE GUARDIANSHIP AND FINAL RENDERING OF ACCOUNTS Art. 276 Guardianship shall terminate: 1. When the minor turns eighteen, unless he should have been judicially incapacitated previously. 2. By adoption of the underage ward. 3. By the death of the ward. 4. By the granting of the benefit of legal age to the minor. Art. 277 Guardianship shall also terminate: 1. Ifit should have arisen as a result of deprivation or suspension parental authority, when the holder of such authority should recover it. 2. Upon issuance of the judicial resolution ending the incapacitation or amending the incapacitation judgement, replacing the guardianship by a conservatorship. Art. 278 The guardian shall continue in the exercise of his position if the underage ward should have been incapacitated before coming of age, in accordance with the provisions of the incapacitation judgement. Art. 279 Upon ceasing in his duties, the guardian must render general justified accounts of his administration to the judicial authority, within three months, which period may be extended by any period required if there is a just cause for it. The action to require the rendering of accounts shall be subject to statute of limitations after five years from expiration ofthe period to perform it. 60 CHAPTER IV On the judicial defender Art. 299 The judicial defender shall be appointed to represent and protect the interests of persons who are in any of the following cases: 1. In the event of a conflict of interest on any matter between the minors or incapacitated persons and their legal representatives or the conservator. In the event of joint guardianship exercised by both parents, when a conflict of interest should exist only with one of them, the other, by operation of law and without the need for a special appointment, shall be entitled to represent and protect the minor or incapacitated person. 2. In the event that, for any reason, the guardian or conservator should fail to perform his duties, until termination of the cause of such failure or designation of another person for the position. 3. In all other cases provided in this Code. Art. 299 bis From the time of the awareness that a person ought to be subject to guardianship and until the issuance of the judicial resolution ending the proceedings, the Public Prosecutor shall assume his representation and defence. In such case, where, as well as the care of his person, such person's property must also be administered, the Judge may designate an administrator thereof, who must render account of his management upon termination thereof. Art. 300 The Judge shall, in voluntary jurisdiction proceedings, ex officio or at the request of the Public Prosecutor, of the minor himself or of any person capable of appearing at court, shall appoint as defender whoever he deems most suitable for the position. Art. 301 The same grounds for ineligibility, excuses and causes for removal applicable to guardians and conservators shall apply to the defender. Art. 302 The judicial defender shall have the powers granted by the Judge, to whom he must render account of his management upon termination thereof. 63 CHAPTER V On de facto custody Art. 303 Without prejudice to the provisions of articles 203 and 228, when the judicial authority should become aware ofthe existence of a de facto carer, it may request him to inform on the situation of the person and property of the minor or the allegedly incapable person and his actions in connection therewith, and may also set any control and supervision measures deemed suitable. Art. 304 Acts performed by the de facto carer in the interest ofthe minor or allegedly incapable person may not be challenged if they are to his benefit. Art. 305 (No content) Art. 306 The provisions of article 220 concerning the guardian shall apply to the de facto carer. Art. 307-313 (No content) TITLE XI On legal age and emancipation Art. 314 Emancipation takes place: 1. By coming of age. 2. By marriage of the minor. 3. By concession granted by persons exercising parental authority. 4, By concession granted by the court. Art. 315 Legal age begins upon turning eighteen. 64 The date of birth shall be included in full for the calculation of legal age. Art. 316 Marriage shall result in emancipation by operation of law. Art. 317 Emancipation by concession granted by the persons exercising parental authority shall require that the minor has turned sixteen and consents to the emancipation. Such emancipation shall be executed pursuant to public deed, or by appearing before the Judge in charge ofthe Registry. Art. 318 The granting of emancipation must be registered in the Civil Registry, and until then shall not be effective vis-a-vis third parties. Emancipation may not be revoked once granted. Art. 319 A child older than sixteen who should live independently of his parents with their consent shall be deemed emancipated for all purposes. The parents may revoke this consent. Art. 320 The Judge may grant the emancipation of children older than sixteen if they should request it, after hearing the parents: 1. When the person exercising parental authority should marry or live together in marital fashion with a person other than the other parent. 2. When the parents should be separated. 3. In the event of any cause which seriously hinders the exercise of parental authority. Art. 321 The Judge, after receiving the Public Prosecutor's report, may also grant the benefit of legal age to the person subject to guardianship who is older than sixteen and who should request it. Art. 322 A person who is of legal age has capacity for all acts of civil life, save for the exceptions set forth in this Code for special cases. Art. 323 Emancipation qualifies the minor to govern his person and property as ¡f he were of legal age, but until he comes of age the emancipated minor may not borrow money, encumber or dispose of immovable properties and commercial or industrial undertakings or objects of extraordinary value without his parents' consent and, in the absence of both, without his conservator's consent. 65 6. Animal farms, dovecotes, beehives, fish tanks or analogous hatcheries, when the owner has placed or preserved them for the purpose of keeping them joined to the property or forming part thereof on a permanent basis. 7. Fertilisers destined for the cultivation of landed property, located in the land where it is to be used. 8. Mines, quarries and dumps, while their matter remains joined to the source, and flowing or stagnant waters. 9. Docks and constructions which, even if they float, are destined, as a result of their purpose and conditions, to remain in a fixed point of the river, lake or coast. 10. Administrative concessions to perform public works, and easements and other rights in rem pertaining to immovable property. CHAPTER Il On movable property Art. 335 Property capable of appropriation not included in the preceding chapter and, generally, all property which may be transported from one point to another without impairment of the immovable object to which it is joined shall be deemed to movable property. Art. 336 Income or pensions, whether life or hereditary annuities, attached to a person or family, provided that they do not encumber with a real lien an immovable object, positions subject to disposal, contracts relating to public services and certificates and securities representing mortgage loans shall also be considered movable property. Art. 337 Movable property shall be fungible or non-fungible. Property which cannot be properly used according to its nature without being consumed shall belong to the first species; other property shall belong to the second species. CHAPTER lll On property based on the persons to which it belongs Art. 338 Property is either of public domain or private property. Art. 339 The following property is of public domain: 68 1. Property destined for public use, such as roads, canals, rivers, torrents, ports and bridges built by the State, riverbanks, shores, bays and other analogous property. 2. Property exclusively owned by the State, which is not for public use, and which ¡is destined to any public services or to the fostering of national wealth, such as city walls, fortresses and other civil works for the defence of the territory, and mines, until the granting of a concession thereon. Art. 340 All other property belonging to the State in which the circumstances expressed in the preceding article do not concur shall be deemed to private property. Art. 341 When property of public domain ceases to be destined to general use or to the requirements of the defence ofthe territory, it shall become part of the property owned by the State. Art. 342 Property belonging to the Royal Patrimony shall be governed by a specific statute, and, for all matters not provided therein, by the general provisions governing private property set forth in this Code. Art. 343 Property belonging to provinces and towns is divided into property for public use and patrimonial property. Art. 344 In provinces and villages, provincial and neighbourhood parks, squares, streets, public fountains and waters, promenades and general service public works paid by the same villages or provinces shall be deemed property for public use. All remaining property held by one or the other shall be patrimonial property and shall be governed by the provisions ofthis Code, save as otherwise provided in specific statutes. Art. 345 Besides the patrimonial property of the State, the Province and the Municipality, property individually or jointly belonging to individuals shall be private property. PROVISIONS COMMON TO THE THREE PRECEDING CHAPTERS Art. 346 When, in a provision of law, or pursuant to an individual statement, the expression immovable property or things, or movable property or things should be used, the property listed in Chapter 1 and in Chapter 2, respectively, shall be deemed comprised therein. When only the word “movables” should be used, money, credits, commercial paper, securities, jewellery, scientific or artistic collections, books, medals, weapons, clothing, horses or carriages and their harness, grain, 69 stock and merchandise, or other things the principal destination whereof is not to furnish or adorn rooms shall not be deemed comprised therein, save in the event that the context of the law or individual provision clearly provides otherwise. Art. 347 Where in any sale, legacy, gift or other disposition in which there is a reference to movable or immovable property, possession or ownership thereof should be transferred with everything located therein, any cash, securities, credits and shares whose documents are located within the transferred property shall not be deemed comprised therein, unless the intention to extend the transfer to such securities and rights should be clearly expressed. TITLE 1! On ownership CHAPTER ONE On ownership in general Art. 348 Ownership is the right to enjoy and dispose of a thing, without greater limitations than those set forth in the laws. The owner shall have an action against the holder and the possessor of the property to claim it. Art. 349 Nobody may be deprived of his property save by the competent Authority and for on justified grounds of public utility, always after the relevant compensation. In the absence of this requirement, Judges shall protect and, as the case may be, restore such person's possessions. Art. 350 The owner of a plot of land is the owner of the surface and of what is underneath it, and may perform therein any building works, plantations and excavations which may be convenient, save for any easements, and subject to the provisions ofthe laws relating to mining and waters and police regulations. Art. 351 Hidden treasure shall belong to the owner of the land in which it is found. Notwithstanding the foregoing, when the discovery should be made by chance in another's property, or in State property, half shall correspond to the discoverer. 70 Art. 366 The accretion gradually obtained by riverbanks as a result of the water currents shall belong to the owners of the land and properties adjoining such banks. Art. 367 The owners of landed properties adjoining ponds or lagoons do not acquire the land uncovered by the natural decrease of the waters, nor lose the land flooded by the waters in extraordinary rises. Art. 368 Where the current of a river, stream or torrent should segregate from the bank of a landed property a known portion of land and should transport it to another property, the owner of the property to which the segregated part belonged shall remain the owner thereof. Art. 369 Trees which are uprooted and transported by the current ofthe waters shall belong to the owner of the land to which they are taken, if the former owners should not claim them within one month. Ifthey should claim them, they must pay any expenses incurred in gathering them in or putting them in a safe place. Art. 370 Riverbeds which are abandoned as a result of natural variations in the course of the waters shall belong to the owners of the lands ofthe riverbanks, in their respective lengths. Ifthe abandoned riverbeds should have separated plots of land belonging to different owners, the new dividing line shall be equidistant from such properties. Art. 371 Islands formed in the seas adjacent to the coasts of Spain and in navigable and floatable rivers belong to the State. Art. 372 Where a navigable and floatable river should vary its direction naturally, and open a new course in a private landed property, this course shall become part of the public domain. The owner of the property shall recover ¡it when the waters should leave it dry again, either naturally or as a result of any legally authorised works for such purposes. Art. 373 Islands which are formed in rivers by successive accumulation of debris belong to the owners of the nearest banks or shores, or to those of both banks if the island should be in the middle of the river, and the island shall then be divided longitudinally in half. If a single island thus formed should be further away from one bank than from the other, the owner of the nearest bank shall own all ofit. Art. 374 When the river current should divide it into two branches, leaving a plot of land or part of it isolated, its owner shall remain owner thereof. He shall likewise keep it if a portion of land is separated from the property by the current. 73 SECTION THREE. ON THE RIGHT OF ACCESSION IN RESPECT OF MOVABLE PROPERTY Art. 375 When two movable things belonging to different owners are joined in such a manner that they form a single thing, without bad faith, the owner ofthe principal thing shall acquire the accessory thing, compensating the former owner for its value. Art. 376 Between two things which have been incorporated together, the thing to which the other has been joined as an adornment, or for its use or perfection shall be deemed the principal thing. Art. 377 If, pursuant to the rule ofthe preceding article, it should be impossible to determine which of two things incorporated together is the principal thing, the thing of greater value shall be deemed principal, and, between two things of equal value, the one with the greater volume. In paintings and sculpture, in writings, printed documents, engravings and lithographs, the table, the metal, the stone, the canvas, the paper or the parchment shall be deemed accessory. Art. 378 When the things joined together can be separated without impairment, the respective owners may demand their separation. However, when the thing joined for the use, embellishment or perfection of another is much more precious than the principal thing, the owner ofthe former may demand separation thereof, even ifthe thing to which it was incorporated suffers any impairment. Art. 379 When the owner of the accessory things has incorporated it in bad faith, he shall lose the incorporated thing and shall be obliged to compensate the owner of the principal thing for any damages suffered. Itthe owner ofthe principal thing should have acted in bad faith, the owner ofthe accessory thing shall be entitled to choose between the former paying its value or the separation of the thing belonging to him, even ¡fit should be necessary to destroy the principal thing; in both cases, compensation of damages shall also apply. If either owner should have performed the incorporation in the other's sight, with his awareness and forbearance, and without opposition, their respective rights shall be determined as ifthey had acted in good faith. Art. 380 Whenever the owner of the materials employed without his consent should be entitled to compensation, he may request that this consist of delivery of a thing equal to the one employed in species and value, and all circumstances thereof, or the price thereof, according to expert appraisal. Art. 381 If, at the will of their owners, two things ofthe same or different species should be mixed, or if the mix should take place by chance, and in this last case the things should not be capable of separation without impairment, each 74 owner shall acquire a proportional right to the part which corresponds to it based on the value of the things mixed or commingled. Art. 382 If, at the will of one owner only, but in good faith, two things of equal or different species should be mixed or commingled, the rights ofthe owners shall be determined according to the provisions of the preceding article. If the person who performed the mix or commingling acted in bad faith, he shall lose the thing belonging to him which was mixed or commingled, and shall also be obliged to compensate any damages caused to the owner ofthe thing with which he performed the mix. Art. 383 The person who, acting in good faith, has used another's materials in whole or in part to create a new work, shall be entitled to appropriate the work, compensating the owner of the materials for their value. If the materials should be more precious or of greater value than the work for which it was used, the owner of the former may, at his discretion, keep the new species, after compensating the value of the work, or request compensation for the materials. If bad faith should have intervened in the creation of a new species, the owner of the materials shall be entitled to keep the work without paying the author anything, or to request the latter to compensate him for the value of the materials and any damages caused. CHAPTER lll On survey and marking of boundaries Art. 384 Any owner shall be entitled to mark the boundaries of his property, summoning the owners of the adjoining plots. Holders of rights in rem shall have the same right. Art. 385 The marking of boundaries shall be performed in accordance with the deeds held by each owner and, in the absence of sufficient title, as results from the possession ofthe adjoining owners. Art. 386 Ifthe deeds should fail to determine the limits or area belonged to each owner, and the matter should not be capable of resolution in reference to possession or by another means of evidence, the marking of boundaries shall be performed by distributing in equal parts the land subject to dispute. Art. 387 Ifthe deeds of the adjoining owners should indicate a greater or lower area than that which comprises the whole of the land, the excess or shortfall shall be distributed proportionally. 75 Art. 399 Each co-owner shall have full ovnership of his part and of the fruits and benefits corresponding to him, and may, as a result thereof, dispose of it, assign it or mortgage it and even delegate its use to another, save ifthey should be personal rights. However, the effect of the disposal or the mortgage in relation with the co-owners shall be limited to the portion awarded thereto in the division upon termination of the joint ownership. Art. 400 No co-owner shall be obliged to remain in the joint ownership. Each of them may request any time the division of the thing owned in common. Notwithstanding the foregoing, the covenant to preserve the thing undivided for a specific period, which shall not exceed ten years, shall be valid. This period may be extended by a new covenant. Art. 401 Notwithstanding the provisions of the preceding article, the co-owners may not request the division of the thing owned in common when, if they should do so, it should become useless for ¡ts intended destination. If it should be a building whose characteristics should allow it, at the request of any of the co-owners, the division may take place by awarding separate flats or premises, with their attached communal elements, in the manner provided in article 396. Art. 402 The division of the thing owned in common may be performed by the interested parties, or by arbitrators or amicable compounders appointed at the will of the participants. If it should be performed by arbitrators or amicable compounders, they must create portions which are proportional to the rights of each of them, avoiding to the extent possible any supplements in cash. Art. 403 Creditors or assignees of the participants may attend the division of the thing owned in common and challenge any division performed without their attendance. However, they may not challenge the division which has already been completed, save in the event of fraud, or in the event that ¡it should have taken place notwithstanding their formally filed opposition to prevent it, and always excepting the rights of the debtor or of the assignor to uphold its validity. Art. 404 Where the thing should be in essence indivisible, and the co-owners should not agree on its being awarded to one ofthem, compensating the rest, it shall be sold, and its price shall be distributed among them. Art. 405 The division of the thing owned in common shall not prejudice a third party, who shall retain any mortgage rights, easements or other rights in rem belonging to him prior to the division. Personal rights belonging to a third party against the joint ownership shall likewise remain in force notwithstanding the division. 78 Art. 406 The rules concerning the partition of the estate shall apply to division between the participants in the joint ownership. TITLE IV On certain special properties CHAPTER ONE On water SECTION ONE. ON OWNERSHIP OF WATER Art. 407 The following waters are of public domain: 1. Rivers and their natural courses. 2. Continuous or discontinuous waters of springs and streams flowing in their natural courses, and the riverbeds. 3. Waters which spring in a continuous or discontinuous manner in land which is of public domain. 4. Lakes and lagoons created by nature in public land, and their rivulets. 5. Rainwater which flows on cliffs or watercourses, where the course ¡is also of public domain. 6. Underground waters in public land. 7. Water found in areas where public engineering works are taking place, even if performed by a concessionaire. 8. Waters which spring in a continuous or discontinuous manner from the private property of individuals, of the State, the province or villages, from the time they exit such properties. 9. Any excess from fountains, drains and public establishments. Art. 408 The following waters are private property: 1. Continuous or discontinuous waters which spring from privately owned plots of land, while they remain in such land. 2. Lakes and lagoons and their rivulets, created by nature in such plots of land. 3. Underground waters located in such plots of land. 4. Rainwater which falls therein, while it does not exit their boundaries. 79 5. The beds of continuous or discontinuous running waters formed by rainwater, and those of any streams which flow through land and properties which are not public domain. In any irrigation channel or aqueduct, the water, the bed, the boxes and the banks shall be considered an integral part ofthe plot of land or the building for which the waters are destined. The owners of the plots of land through which or through whose boundaries the aqueduct should pass may not allege ownership thereof, nor any right to use its bed or banks, unless it is based on deeds of ownership which express the right or ownership claimed thereby. SECTION TWO. ON THE USE OF PUBLIC WATERS Art. 409 The use of public waters is acquired: 1. By administrative concession. 2. By twenty years' prescription. The limits of the rights and obligations of such uses shall be, in the first case, as results from the terms of the concession and, in the second, from the manner and form in which the waters have been used. Art. 410 Any concession to use waters is understood without prejudice to the rights of third parties. Art. 411 The right to use public waters shall terminate as a result of expiration ofthe concession and by lack of use for twenty years. SECTION THREE. ON THE USE OF PRIVATE WATERS Art. 412 The owner of a plot of land in which a continuous or discontinuous spring or stream should be born may use its waters while they pass through it; but the remaining waters shall become public, and their use shall be governed by the special Law of Waters. Art. 413 Private property over rivulets of rainwater shall not authorise to perform tasks or works to change their course to the detriment of a third party, nor such works whose destruction may cause such detriment by the force ofthe current. Art. 414 Nobody may enter private property to search for waters or use them without licence from the owners. Art. 415 The ownership rights held by the owner of a plot of land over the waters which spring from it shall not prejudice any rights legitimately acquired to use them by the owners of lower plots. 80 TITLEV On possession CHAPTER ONE On possession andits species Art. 430 Natural possession is the holding ofa thing or the enjoyment of a right by a person. Simple possession is that same holding or enjoyment joined with the intention of having the thing or right as one's own. Art. 431 Possession ¡is exercised on things or rights by the same person who holds and enjoys them, or by another in his name. Art. 432 Possession of property and rights may be held in one oftwo capacities: either as owner, or as holder of the thing or right, to preserve or enjoy them, while ownership belongs to another person. Art. 433 The person who ¡s unaware that there is a defect which invalidates his title or manner of acquisition shall be deemed a possessor in good faith. Otherwise he shall be deemed a possessor in bad faith. Art. 434 Good faith is always presumed, and the person asserting a possessor's bad faith shall have the burden of proving it. Art. 435 Possession acquired in good faith shall not lose this nature save if and when there are acts which evidence that the possessor is not unaware that he possesses the thing improperly. Art. 436 It shall be presumed that possession continues to be enjoyed in the same capacity in which ¡it was acquired, unless there is evidence to the contrary. Art. 437 Only things and rights which are capable of appropriation may be subject to possession. 83 CHAPTER Il On acquisition of possession Art. 438 Possession is acquired by material occupation of the thing or right possessed, or by the latter becoming subject to our will, or pursuant to the acts and legal formalities set forth to acquire such right. Art. 439 Possession may be acquired by the same person who is to enjoy it, his legal representative, his attorney or by a third party without mandate; but this last case possession shall not be deemed to have been acquired until the person in whose name the act of possession has been verified should ratify it. Art. 440 Possession of hereditary property shall be deemed transferred to the heir without interruption from the time of death ofthe decedent, in the event that the former should finally accept the inheritance. The person who validly rejects an inheritance shall be deemed never to have possessed it. Art. 441 In no event may possession be acquired violently where there is a possessor who opposes this. A person who believes he has an action or right to deprive another of holding a thing, ifthe holder refuse to deliver it, must request the assistance of the competent Authority. Art. 442 Aperson succeeding by inheritance shall not suffer the consequences of his principal's defective possession, if it is not proven that he was aware ofthe defects which affected it; however, the effects of possession in good faith shall only benefit him from the date of his decedent's death. Art. 443 Minors and incapacitated persons may acquire possession over things; but they shall require the assistance of their legitimate representatives to use the rights arisen in their favour as a result of such possession. Art. 444 Acts which are merely tolerated, and those which are performed in a clandestine fashion and without the possessor ofthe thing being aware of them, or with violence, shall not affect possession. Art. 445 Possession, as a fact, may not be acknowledged in favour of two different persons, other than in cases of pro indiviso. If a dispute should arise on the fact of possession, the current possessor shall be preferred; ifthere should be two possessors, the oldest shall be preferred; ifthe dates of possession should be the same, the possessor who 84 presents a title shall be preferred; and, all these conditions being equal, the thing shall be deposited or consigned with the court, until the possession or ownership thereof is determined pursuant to the corresponding proceedings. CHAPTER lll On the effects of possession Art. 446 Any possessor is entitled to be respected in his possession; and, ifhe should be disturbed in it, he must be protected or such possession must be restored to him by the means set forth in procedural laws. Art. 447 Only possession acquired and enjoyed in the capacity of owner may serve as title to acquire ownership. Art. 448 The possessor in the capacity of owner has a legal presumption of possessing based on just title, and cannot be obliged to exhibit it. Art. 449 Possession of a real property shall involve possession ofthe furniture and objects located therein, unless it should be expressed or evidenced that they are to be excluded. Art. 450 Each participant of thing possessed in common shall be deemed to have possessed exclusively the part which, upon dividing the thing, should be allocated to him, during the whole period during which it remained undivided. Interruption in the possession of the whole or part of the thing possessed in common shall be to the equal detriment ofall. Art. 451 The possessor in good faith shall make any fruits received his own unless he is legally interrupted in his possession. Natural and industrial fruits shall be deemed received from the time on which they arise or are separated. Civil fruits shall be deemed accrued on a daily basis, and shall belong to the possessor in good faith in such proportion. Art. 452 If at the time on which good faith should cease, any natural or industrial fruits should be pending, the possessor shall be entitled to recover any expenses made for their production, and also to the part of the liquid product ofthe harvest proportional to the time of his possession. Charges shall be allocated pro rata in the same manner among two possessors. 85 TITLE VI On usufruct, on use and on habitation CHAPTER ONE On usufruct SECTION ONE. ON USUFRUCT IN GENERAL Art. 467 Usufruct entitles one to enjoy another's property with the obligation to preserve ¡ts form and substance, unless otherwise authorised by the deed pursuant to which it was created or the law. Art. 468 Usufruct is created by law, by the will of individuals expressed in acts inter vivos or in a last will and testament and by prescription. Art. 469 Usufruct may be created in respect of all or part of the fruits of the thing, in favour of one or several persons, simultaneously or successively, and in any event from or until a certain day, absolutely or subject to a condition. lt may also be created over a right, provided that it is not a strictly personal or a non-transferable right. Art. 470 The rights and obligations of the usufructuary shall be as determined in the deed constituting the usufruct; in the event of absence or insufficiency thereof, the provisions contained in the two following sections shall be observed. SECTION TWO. ON THE RIGHTS OF THE USUFRUCTUARY Art. 471 The usufructuary shall be entitled to receive all natural, industrial and civil fruits of the property subject to the usufruct. He shall be considered a stranger in respect of any treasures found on the property. Art. 472 Natural or industrial fruits which are pending at the start ofthe usufruct shall belong to the usufructuary. Those which are pending at end ofthe usufruct shall belong to the owner. In the above cases, the usufructuary, at the start of the usufruct, shall have no obligation to pay the owner any expenses made; but the owner shall be obliged to pay at the end of the usufruct, with the proceeds of the 88 pending fruits, ordinary expenses incurred for cultivation, sowing and other similar expenses made by the usufructuary. The provisions of this article shall not prejudice the rights of a third party acquired at the start or at the end of the usufruct. Art. 473 Ifthe usufructuary should have leased the land or properties given in usufruct and the latter should end prior to the end of the lease, he or his heirs and successors shall only receive the proportional part of the rent payable by the lessee. Art. 474 Civil fruits shall be deemed perceived per day, and shall belong to the usufructuary in proportion to the duration of the usufruct. Art. 475 If the usufruct is created over the right to receive a regular income or allowance, either in cash, or in fruits, or the interest on bearer notes or securities, each instalment shall be deemed products or fruits ofthe former right If it should consist of the enjoyment of the profits of a share in an industrial or commercial undertaking, without a fixed distribution date, such profit shall have the same consideration. In both cases the products shall be distributed as civil fruits, and shall be allocated as provided in the preceding article. Art. 476 In a plot of land which contains mines, the product of any mines discovered, granted or exploited at the start ofthe usufruct shall not correspond to the usufructuary unless expressly granted in the deed which created it, or unless the usufruct is universal. The usufructuary may, however, extract stones, lime and plaster from quarries for any repairs or works which he should be obliged to perform or which should be necessary. Art. 477 Notwithstanding the provisions of the preceding article, in a legal usufruct the usufructuary may exploit any mines discovered, granted or exploited existing in the property, keeping half of the resulting profits after deducting any expenses, which shall be paid by halves with the owner. Art. 478 The condition of usufructuary shall not deprive the person who holds it from the right granted to every person by the Mining Law to discover and obtain the concession of any mines existing in plots of land subject to usufruct, in the manner and under the conditions set forth in the same Law. Art. 479 The usufructuary shall be entitled to enjoy any increase in the thing subject to usufruct by accretion, any easements in its favour and generally all benefits inherent thereto. 89 Art. 480 The usufructuary may use himself the thing subject to usufruct, lease it to another and dispose of his right of usufruct, even as a gift, but all contracts entered into as such usufructuary shall be terminated at the end of the usufruct, save the lease of rural properties, which shall be deemed to subsist during the agricultural year. Art. 481 If the usufruct should comprise things which, although not consumed, are slowly impaired pursuant to wear and tear, the usufructuary shall be entitled to avail himself of them, using them in accordance with their purpose, and shall only be obliged to return them at the end of the usufruct in their current condition; but with the obligation to compensate the owner for any impairment suffered as a result of his wilful misconduct or negligence. Art. 482 If the usufruct should comprise things which cannot be used without consuming them, the usufructuary shall be entitled to avail himself of them with the obligation to pay their value upon expiration of the usufruct, if it should have been estimated. If it should not have been estimated, he shall be entitled to return them in the same amount or quality or to pay their current price at the end of the usufruct. Art. 483 The usufructuary of vineyards, olive groves or other trees or bushes may avail himself of any dead stumps and even of any which should be broken or uprooted by accident, with the obligation to replace them with others. Art. 484 If, as a result of an extraordinary accident or event, the vines, olive groves or other trees or bushes should have disappeared in such a considerable numberthat their replacement should be impossible or excessively burdensome, the usufructuary may leave the dead, fallen or broken stumps at the owner's disposal and require the latter to remove them and leave the land bare. Art. 485 The usufructuary of woodland shall enjoy all the benefits produced thereby according to ¡ts nature. In timber or construction timber woodland, the usufructuary may perform any ordinary cutting or felling usually performed by the owner and, in the absence thereof, shall perform it in accordance with local custom as relates to manner, portions and season. In any event any felling or cutting shall be performed so as not to cause a detriment to the preservation of the property. In timber nurseries the usufructuary may perform the necessary selective felling so that the timber which remains may develop conveniently. Other than as provided in the preceding paragraphs, the usufructuary may not fell trees by the root other than to replace or improve any of the things subject to usufruct, and in this case, he shall give the owner prior notice ofthe need to perform such works. Art. 486 The usufructuary of an action to claim a plot ofland or a right in rem or movable property shall be entitled to exercise it and to force the owner of the action to grant him powers of representation for such purpose and to provide any 90 Art. 500 The usufructuary shall be obliged to make ordinary repairs required by the things given in usufruct. Ordinary repairs shall be deemed to mean those required as a result of any impairments or damage resulting from the natural use of things which are indispensable for their preservation. If he should fail to perform them after being demanded to do so by the owner, the latter may perform them by himself at the usufructuary's expense. Art. 501 Extraordinary repairs shall be borne by the owner. The usufructuary is obliged to give the latter notice thereof in case of urgent need to perform them. Art. 502 If the owner should perform extraordinary repairs, he shall be entitled to request the usufructuary to pay legal interest on the amount invested therein for the duration of the usufruct. If he should fail to perform them when they should be indispensable for the subsistence ofthe thing, the usufructuary may perform them; but he shall be entitled to demand the owner, upon expiration of the usufruct, to pay the increase in value of the property as a result of such works. If the owner should refuse to satisfy such amount, the usufructuary shall be entitled to retain the thing until he is reimbursed with ¡ts products. Art. 503 The owner may perform any works and improvements of which the property subject to usufruct is capable, or new plantations therein if it should be a rural property, provided that the value of the usufruct should not be reduced or the right ofthe usufructuary damaged as a result of such acts. Art. 504 Payment of charges and annual contributions and ofthose which are deemed to tax the fruits shall be borne by the usufructuary for the duration of the usufruct. Art. 505 Contributions imposed during the usufruct directly over the capital shall be borne by the owner. If the latter should have paid them, the usufructuary must pay interest corresponding to the sums paid for such purpose and, ifthe usufructuary should have advanced payment thereof, he must receive the amount thereof at the end ofthe usufruct. Art. 506 If the usufruct should be constituted over a whole patrimony, and, upon its creation the owner should have debts, the provisions of articles 642 and 643 in respect of gifts shall apply, both as relates to the subsistence ofthe usufruct and to the usufructuary's obligation to pay them. The same provision shall apply in the event that the owner should be obliged, upon creation ofthe usufruct, to pay regular amounts, even ifthe principal thereof should be unknown. 93 Art. 507 The usufructuary may claim by himself any matured credits which form part of the usufruct if he should have provided or should provide the corresponding bond. If he should be excused from providing a bond or should have been unable to provide it, or ifthe bond provided should not be sufficient, he shall require the owner's authorisation to collect such credits, or that ofthe Judge in the absence ofthe former. The usufructuary who has provided a bond may give the capital any destination he deems convenient. The usufructuary who has not provided a bond must place such capital so asto generate interest by common consent with the owner; in the absence of an agreement between both, with judicial authorisation; and, in any event, with sufficient guarantees to preserve the integrity ofthe capital subject to usufruct. Art. 508 The universal usufructuary must pay in full the legacy consisting of a life annuity or support allowance. The usufructuary of a proportional share of the inheritance shall pay it in proportion to his share. In neither of these two cases shall the owner be obliged to reimburse him. The usufructuary of one or more specific things shall only pay the legacy when the annuity or allowance should be specifically created over the former. Art. 509 The usufructuary of a mortgaged property shall not be obliged to pay the debts for the security whereofthe mortgage was established. If the property should be attached or judicially sold for the payment of the debt, the owner shall be liable to the usufructuary for the latter's losses by reason thereof. Art. 510 If the usufruct should be for the whole or a proportional share of an inheritance, the usufructuary may anticipate the sums corresponding to the property subject to usufruct for the payment of the debts of the estate: and shall be entitled to require the return thereof, without interest, from the owner, upon expiration of the usufruct. If the usufructuary should refuse to make such an advance, the owner may request that the part of the property subject to usufruct necessary to pay such sums be sold, or pay them out of his own money, and in this last case shall be entitled to request from the usufructuary the corresponding interest. Art. 511 The usufructuary shall be obliged to give the owner notice of any third-party acts of which it should become aware capable of injuring the rights of ownership, and, if he should fail to do so, shall be liable for any damages, as ifthey had been caused by his fault. Art. 512 The usufructuary shall bear the expenses, costs and rulings of any litigation relating to the usufruct. 94 SECTION FOUR. ON WAYS OF EXTINGUISHING THE USUFRUCT Art. 513 The usufruct shall be extinguished: 1. By the death of the usufructuary. 2. By expiration of the period for which it was constituted, or performance of the condition subsequent set forth in the deed creating the usufruct. 3. By the coincidence of the usufruct and ownership in the same person. 4. By the renunciation ofthe usufructuary. 5. By total loss of the thing constituting the subject matter of the usufruct. 6. By termination ofthe right of the person who constituted the usufruct. 7. By prescription. Art. 514 If the thing given in usufruct should be lost only in part, such right shall continue in the remaining part. Art. 515 Ausufruct may not be created in favour of a village or Corporation or Company for more than 30 years. Ifone should have been created, and before such time the village should be abandoned, or the Corporation or the Company dissolved, the usufruct shall be extinguished by reason thereof. Art. 516 The usufruct granted for the time it takes a third party to reach a certain age shall subsist for the preset number of years, even if the third party should die beforehand, unless such usufruct should have been expressly granted only on the basis of the existence of such person. Art. 517 If the usufruct should be created over a property of which a building forms part and such building should be destroyed in any way, the usufructuary shall be entitled to enjoy the land and materials. The same shall happen when the usufruct should be created only over a building and the latter should be destroyed. However, in such case, ifthe owner should wish to build another building, he shall be entitled to occupy the land and to avail himself of the materials, being obliged to pay the usufructuary, for the duration of the usufruct, the interest on the sums corresponding to the value of the land and materials. Art. 518 If the usufructuary should purchase with the owner insurance over a plot of land given in usufruct, in the event of loss, the former shall continue in the enjoyment of the new building if it should be built, or shall receive the interest on the insurance indemnity if it should not be in the owner's interest to rebuild. 95