CHAPTER XVIII.

SPAIN.

Spain is a constitutional and hereditary monarchy, the powers of which are defined by the fundamental law of June 30, 1876. The legislative authority is exercised by the sovereign in conjunction with a parliamentary body called the Cortes, which is composed of two houses, a Senate and a Chamber of Deputies.

Spanish law is founded on the Roman law, the Gothic common law, the National Code of 1501, and the Civil Code of 1888, with its subsequent amendments and additions.

Spanish law is binding in the Spanish Peninsula and adjacent islands, the Canary Islands and such African territory as is subject to Spain.

MARRIAGE.--The law recognizes two forms of marriage: the canonical, which all who profess the Catholic religion should contract; and the civil, which must be celebrated in the manner hereinafter stated.

Marriage is forbidden to:

1. Minors who have not obtained parental consent.

2. To a widow, during the three hundred and one days following the death of her husband or before childbirth, if she has been left pregnant.

3. To a guardian and his or her descendants, with respect to persons who are the wards of such guardian until the ending of the guardianship, and a proper accounting has been rendered by the guardian. An exception to this rule exists when the father of the ward has in his will or in a public instrument expressly authorized such a marriage.

AGE.--A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year.

Marriage contracted by persons under puberty shall, nevertheless, be _ipso facto_ made legal if a day after having arrived at the legal age of puberty, the parties continue to live together without bringing a suit to set aside the marriage, or if the female becomes pregnant before the legal age, or before the institution of a suit for annulment.

Persons who are not in the full exercise of their reasoning faculties cannot contract marriage.

The law forbids the marriage of all those who suffer from absolute or relative impotency.

Priests and all other persons bound by a solemn pledge of celibacy in the approved canonical manner are forbidden to contract marriage, unless they have first received the necessary canonical dispensation.

Persons already lawfully married cannot contract a new marriage.

CONSANGUINITY AND AFFINITY.--The following persons cannot contract marriage between themselves:

1. The ascendants and descendants by legitimate or illegitimate blood or affinity.

2. Collaterals by legitimate consanguinity up to and including the fourth degree.

3. Collaterals by legitimate affinity up to and including the fourth degree.

4. Collaterals by natural consanguinity or affinity up to and including the second degree.

5. The adopting father or mother and the adopted child; the latter and the surviving spouse of the adoptees, and the adopters and the surviving spouse of the adopted.

6. The legitimate descendants of the adopter with the adopted, while the relation of adoption continues.

7. Accomplices in adultery who have been judicially sentenced.

Those who have been condemned as principals, or principal and accomplice, in the homicide of the spouse of any of the parties cannot conclude marriage between themselves.

The government for sufficient cause will, on petition of a party, grant a dispensation permitting marriage between collaterals by legitimate consanguinity within the fourth degree. Other dispensations may also be granted on a proper petition.

PARENTAL CONSENT.--The consent of the father is required for the marriage of a legitimate minor; in his default, or where he cannot consent, the power to grant it devolves, in this order: upon the mother, the paternal and maternal grandparents, and in default of all these, upon the family council.

Recognized natural children or children legitimatized by royal concession must ask the consent of those who have recognized or legitimatized them or of their ascendants, or of the family council.

Adopted children must ask the consent of the adopting father, and in his default, of the persons of the natural family upon whom it may devolve.

Unrecognized illegitimate children must ask the consent of their mother, when she is known, and in her default consent must be asked of the maternal grandparents, and in their default, that of the family council.

Children of age are obliged to ask the advice of the father, and in his default, of the mother before contracting marriage. In case the advice given is against the proposed alliance, the marriage cannot be celebrated until three months after the petition is made.

Marriage in Spain is dissolved absolutely only by the death of one of the parties.

CANONICAL MARRIAGE.--The requisites, form and solemnities for the celebration of canonical marriage is governed by the laws of the Catholic Church, and by the decrees of the Holy Council of Trent, which are accepted as part of the organic law of Spain. Canonical marriage produces all the civil effects in respect to persons and property of the spouses and their offspring. A magistrate is required to be present at the celebration of a canonical marriage simply for the purpose of making a verified record in the Civil Registry of the marriage. So that he may be present for the purpose above stated, the magistrate must be given notice in writing twenty-four hours at least before the intended celebration, telling him of the day, hour and place of the marriage.

Persons who contract canonical marriage in _articulo mortis_ may give notice to the officials in charge of the Civil Registry, at any time whatever prior to its celebration, and prove in any manner whatever that such duty has been performed.

CIVIL MARRIAGE.--A civil marriage must be preceded by a declaration to the Municipal Judge, stating the names, ages, professions and domiciles of the contracting parties; also the names, professions and domiciles of the parents; and proper certificates of the births and status of the contracting parties; certificates of consent or advice of parents, and dispensations when required.

Marriages may be celebrated personally or by a substitute or proxy to whom a special authorization has been granted.

Civil marriages must be solemnized by the contracting parties appearing before the Municipal Judge, or one of them, and the person whom the absent party may have appointed as proxy must appear before such magistrate, together with two competent witnesses.

The Municipal Judge, after reading articles 56 and 57 of the Civil Code to the parties (which point out the rights and obligations of married life), must ask each party if they desire to be married to each other, and if both answer in the affirmative, the judge shall declare the parties to be husband and wife, and prepare a record of the marriage.

Consuls and vice-consuls are empowered to exercise the function of municipal judges in marriages of Spaniards, celebrated in foreign countries.

NULLITY OF MARRIAGE.--The following marriages are null and void:

1. Those concluded between persons related within the prohibited degrees.

2. Those concluded between persons under the age of puberty.

3. Marriages between persons, one or both of whom were of incurably unsound mind.

4. Incurably impotent persons.

5. Persons bound by canonical vows to chastity.

The proceeding to have such marriages judicially declared as null may be instituted by either spouse, the Public Attorney, or by any interested person.

The action lapses, and the marriage will be confirmed in cases based on abduction, error, force or fear, when the spouses have lived together six months after the error became known, or after the force or fear has ceased.

DIVORCE.--A divorce in Spain only amounts to what in other countries is called a judicial separation. Accepting the decrees of the Council of Trent as law for Spain, marriage is treated as a sacramental contract which can only be dissolved by death.

The Civil Code, Article 104, states the following causes for divorce:

1. Adultery on the wife's part.

2. Adultery on the part of the husband, when public scandal or disgrace of the wife is a result.

3. Violence exercised by the husband over the wife in order to force her to abandon her religious faith.

4. Cruelty actually inflicted, or grave acts of contumely.

5. The attempt or proposal of a husband to prostitute his wife.

6. The attempts of either husband or wife to corrupt the morals of the sons, or to prostitute the daughters.

7. Condemnation of either spouse to imprisonment for life.

EFFECTS OF DIVORCE OR NULLIFICATION.--The civil effects of a divorce or annulment of marriage are as follows:

1. Separation of the parties.

2. To place the custody of the children with one or both of the parties, as justice may require.

3. To determine the responsibility for the support of the woman and children.

4. To place the woman under the special protection of the law.

5. To decree the necessary measures to prevent the husband, who may have given cause for divorce, or against whom the petition for nullity of the marriage has been instituted, from interfering with the wife in the administration of her separate property.

HUSBAND AND WIFE.--The spouses are under mutual obligation to live together, to be faithful to, and help each other. The husband is bound to protect his wife and the wife to obey her husband.

The wife is required to follow her husband wherever he may establish his residence. The courts, however, will in some cases release her from this requirement when the husband changes his residence to a foreign land.

The husband is the manager of the property of the conjugal union, except when there is a mutual agreement to the contrary.

The husband is the legal representative of the wife. She cannot, without his permission, appear in a suit by herself or through an attorney. However, she does not need such permission to defend herself in a criminal case or to bring a suit against her husband, or to defend herself in a suit brought by her husband against her.

A wife cannot, without her husband's permission, acquire property in trade or by her labour. Neither can she, without such consent, alienate her property.

The wife can, without her husband's permission, perform the following acts:

1. Execute a will.

2. Exercise the rights and perform the duties which pertain to her with regard to legitimate and recognized illegitimate children, the issue of herself and another not now her husband.

FOREIGN MARRIAGES.--The Spanish courts recognize as valid in Spain any marriage performed in a foreign country in accordance with the laws of such country, provided such marriage also meets with all the requirements of the Civil Code of Spain.