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J. A. Márquez González, National Report Mexico
National Report Mexico
Contents
1. Notarial Law
2. Civil Law
3. Family Law
4. Law of Succession
5. Company Law
6. Private International Law
7. Tax Law
page
200
203
204
207
211
213
214
This is a report on the legal situation at 1 June 2005.
1. Notarial Law
1.1. History
Although a certain type of public officials, known as
tlacuilos, who were responsible for recording historical
facts or the most significant events, existed in pre-Hispanic times, the institution of notary was only really introduced to the territory now known as Mexico with the
discovery of America and the subsequent conquest of the
native peoples. Thus, we know that the conquistador,
HERNÁN CORTÉS, was accompanied by a scribe named
DIEGO DE GODOY. In fact, the first notarial record drafted
on the American continent was made in 1519 at the present-day port of Veracruz.
In the next three hundred years, which were characterised by the new-Hispanic colonial system, the scribes of
Virreinato fully adapted their practices to the legal structure existing in Spain, albeit perhaps with certain special
exceptions applicable in the legislation known as the Recopilación de Leyes de los Reinos de las Indias (Compilation of Laws of the Kingdoms of the Indies).
With the advent of the movement for independence of
the American colonies in the second and third decades of
the 19th century, the institution of notary suffered severe
disruption due to the break, albeit gradual, with the legal
system of Spain. Nevertheless, many structures of the
profession remained valid and the everyday practice of
notaries doubtless reflected the same Spanish tradition.
Sources of law in this period are dispersed throughout a
number of laws that are still included in the Recopilación
de Indias (Compilation of the Indies), the Novísima Recopilación (New Compilation), the Fuero Real (Royal
Charter) and the Siete Partidas (Seven Divisions).
1.2. Types of notary
How many types of notary are there in Mexico? Strictly speaking, there is only one holder of the post per notary public's office and that notary assumes the legal title of
notary or notary public.
The concept of escribano público still exists in Yucatán. These officials are also appointed by the local government, but only discharge their duties for three years.
They need not necessarily be lawyers. They have the
same capacity to attest as notaries themselves, provided
that the sum involved in the attested acts does not exceed
Notarius International 3-4/2005
500 days' minimum salary, i.e. $ 22,025 pesos – equivalent to approximately USD 2,000.
As far as the assistant is concerned, there is a large disparity of names and duties, since the terms suplente (assistant), asociado (associate), adscrito (adjutant), interino (intern), supernumerario (supernumerary), auxiliar
(auxiliary), provisional (provisional), sustituto (substitute) are all used, according to the federal state in question.
There are currently around four thousand notaries
throughout the country, serving a population of approximately 100 million.
1.3. Sources of law
The United States of Mexico consists of a total of 32
federal states, including the Federal District. These
states have independent internal systems and, therefore,
each has a Civil Code (although most of these Codes do
not differ from one another to any great extent). The same
occurs with local laws governing notaries and registries.
Thus, the institutional legislative structure for the Mexican notarial profession consists of a complex mosaic of
32 civil codes (plus a Federal Civil Code), 32 laws governing notaries and 32 laws governing registries although, on the other hand, mercantile matters are governed at a federal level and consist of one single Commercial Code and one single Law on Companies.
This study will focus on the Civil Code of 1932 and the
Ley del Notariado (Notary Law) of 2000, both relating to
Mexico City, not forgetting the particular features that
naturally exist in other federal states.1 Particular attention
has been paid to all of these and the applicable legal provision is cited in each case to facilitate consultation.
1.4. Access to the profession
1.4.1. The Notarial Degree
The Notary Law creates what is known as the Notarial Degree, since section 49 of that law establishes as follows:
Training as a notary and the dissemination of legal impartiality and knowledge to the benefit of the legal profession are guaranteed by this law and the Notarial Degree provides theoretical and practical training to achieve
that. It also provides sufficient deontological and personal training so that, through competitive examinations set
by specially qualified juries, legal professionals who are
suitable candidates to work as notaries can gain access to
the profession in optimum conditions as far as service
and equality of access are concerned, for the benefit of
the city and for the positive development of the profession of notary.
1
Mexican laws (including Federal and State laws) can be found at
http://www.diputados.gob.mx/LeyesBiblio/gobiernos.htm
As far as its age is concerned, the current status of notarial legislation
is as follows: in Tabasco, the law dates from 1976 and in Yucatán it
dates from 1977. These are the oldest. The most recent notarial laws
are Campeche (2000), the Federal District (2000), Veracruz (2004),
Chiapas (2005) and Nayarit (2005).
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J. A. Márquez González, National Report Mexico
The Notarial Degree is governed by eight principles,
i.e.: excellence, specialisation, legitimation, objectivity,
professionalism, impartiality, sustainability and independence (article 50 of the Notary Law; article 53, notarial laws of Nayarit).
1.4.2. Public examinations
Access to the profession invariably takes place through
competitive examinations (although this is not a general rule throughout the country) and by satisfying a number of requirements contained in article 54 of the Notary
Law. These include the following requirements: candidates must be native Mexican; they must be legal professionals and they must prove a minimum of twelve
months' uninterrupted practice as notaries.
There is an increasing tendency to require competitive
examinations in the profession of notary. Currently a total of 27 federal states require an examination to be
passed for access to the post, although we should clarify
that in the states of Coahuila and Querétaro the requirements may be dispensed with by the state government in
certain cases through an express legal order.
The notarial laws of the states of Yucatán, Hidalgo and
Puebla only require an examination for candidates to
the profession, but not to obtain the post of notary of a
notary public's office. The notarial law of Puebla also dispenses with the requirement to pass the candidates' examinations in the case of lawyers who already possess the
university qualification of “notarios” [notaries]. In this
federal state and also in the state of Veracruz, assistants
are authorised to succeed to the post of notary public of a
notary's office without any need for a competitive examination (articles 65 of the Puebla notarial law and 55 of
the Veracruz notarial law).
Finally, the states of Aguascalientes and Michoacán are
the only states that do not require a competitive examination either to gain access to the post of notary public or
for candidates to practise the profession.
1.5. Notaries' duties
1.5.1. Execution of public documents.
In general, the duties of a notary are confined to the execution of public documents, which confers authenticity
and legal certainty on the transactions that they witness at
the request of the interested parties.
“A notary is a legal professional authorised by the
State to execute documents and who is responsible for
receiving, interpreting, drafting and giving legal form to
the wish of the persons appearing before him and conferring authenticity and legal certainty on acts and facts furnished to him for witnessing by recording them in public
documents drafted by him. The notary keeps the documents in the files in his charge, reproduces them and witnesses them. He also acts as an auxiliary in the administration of justice as a counsellor, an arbitrator or an international advisor in the terms stated in the relevant legal
provisions” (article 42 of the Notary Law and also article
42 of the notarial law of Nayarit).
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There can be no doubt that this function is of a complex
nature: “... it is public inasmuch as it derives from powers of the State and the law, which enshrine professional
activities of notaries and notarial documentation in the
service of society. On the other hand, it is independent
and free for the notary with the public capacity to witness
who exercises it.” (article 26 of the Notary Law).
Nevertheless, the function of the notary, thus conceived, is constrained by a system of incompatibilities,
prohibitions and exceptions. Thus, article 32 of the Notary Law provides that the office of notary is incompatible
with any public or private dependence or employment,
post or commission and with professional practice as a
lawyer. Neither may notaries be merchants, ministers of
religion or economic agents of any type. A notary cannot
be removed from his post.
In accordance with the most refined national doctrine,
a notary public's activities consist of listening, interpreting and advising the parties; and preparing, drafting, certifying, witnessing and reproducing the document.2
1.5.2. Notaries' powers
The most significant powers conferred on notaries include the following:
- In civil law: to draft all types of agreements between private individuals, such as purchases and sales, exchanges,
donations, loans, leases, condominium systems, creation
of real rights, guarantee agreements, etc.
- In family law: the execution of agreements between
spouses on the marital regime, pre-divorce or judicial
separation agreements, agreements on parental authority, custody, guardianship, changes of name, certificates of identity, donations between spouses, acknowledgements of paternity and creation of “patrimonio de
familia” [family property].
- In law of succession: the making of wills, the processing of succession proceedings, testate and intestate succession proceedings, partitions and awards by inheritance.
- In company law: documents incorporating companies,
drafting of minutes of ordinary and extraordinary general meetings, transfer of shares, and dissolution and
liquidation of companies, with the respective notarisation.
- In agrarian law: participation in certain meetings relating to the system of communal (or community) ownership and transfers of plots.
- In procedural law: processing of records to certify a
range of factual situations that may be required by the
interested parties in the procedure for prior formulation
of evidence.
In some federal states of the Republic, the notary plays
an important part in procedural law, specifically in matters
of voluntary jurisdiction. In the case of Veracruz, for
example, the notary may take part in the following acts:
2
BERNARDO PÉREZ FERNÁNDEZ DEL CASTILLO, Derecho notarial (Notarial Law), Porrúa, México, 1997, page 149.
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J. A. Márquez González, National Report Mexico
- Proof of facts and accreditation of rights;
- Accreditation of residence, good conduct or financial
dependence;
- Verification of possession of a real right;
- Voluntary change of name;
- Voluntary procedure for survey and demarcation;
- Voluntary creation and cancellation of family property;
- Voluntary liquidation of property held jointly by spouses;
- Voluntary creation and amendment of marriage contracts;
- Testate or intestate succession, and
- Unanimous waiver and appointment of executor (article 699-A of the Code of Civil Procedure of Veracruz).
ry security procedures consisting of watermarks or other
distinctive marks.
There is currently a decisive movement towards legislative reform in favour of “open” records. A total of 21 federal states now contemplate these records in their legislation as being either obligatory or optional and 11 states do
not, although we should point out that 4 of them possess
the record known as the “special open” record for executing deeds for immovable properties of “social interest”
which other federal states have abolished, precisely to introduce the “open” protocol in a generalised manner.
Interested parties have the right to obtain transcripts,
certified reproductions and certificates of the document
from the notary of either the full document or part thereof, provided that no damage ensues in this latter case. The
transcripts executed by notaries are subject to security
procedures on one cover, which identifies the notary, the
number of his notary public's office, the respective jurisdiction and the local government to which it belongs. It is
also common for the cover to show the notary's private
logotype or letterhead. In turn, it is mandatory for the
printed sheets of transcripts to bear the seal and the signature or paraph of the notary and, in some cases, the respective kinegram.3
1.6. Procedure for execution
1.6.1. Execution
Articles 100-142 of the Notary Law describe in detail
the procedure for notarial execution. Thus, deeds must be
issued on indelible media with no abbreviations, except
in the case of transcripts. No numbers must be written unless they are also stated in words and unused space must
be crossed through. Corrections may be made using the
method of writing between the lines, indicating the incorrect expression by means of a line, but in any case finally saving what is corrected. Changes and crossings out
are strictly prohibited.
The notary must draft deeds in Spanish, although in
exceptional circumstances he may enter words in another language. He must state the place and the date, the full
names of the appearers and the legal name of the act. He
must also carefully record the antecedents, listing the respective titles of ownership, as appropriate, the registration particulars and the necessary administrative and tax
documents. Likewise, he must describe the property or
subject-matter of the business, as appropriate, in detail,
list the powers or authorities for representation, draft in
order the clauses agreed by the signatories and any waivers of rights. He must attach any documents that he
deems important to the appendix and he must certify and
attest that he knows the signatories (stating their general
particulars), that he has assured himself of their identity,
that he read the deed out to them and that he explained
its legal scope to them. He must also certify the facts
placed before him. He must do all this in clear, concise,
precise legal language, with no obsolete or antiquated
words or formulae. At the end of the deed, the notary
must obtain the signatures or marks of the signatories and
appearers and witness the deed with his signature, his
stamp and the expression “Ante mí” (Before me).
1.6.3. Public documents
Public documents are documents that a public official
who has been granted the authority to attest documents is
authorised by law to draft, within the limit of his powers.
Public documents are also those documents issued by
public officials when discharging their duties. The classification of public is shown by the fact the document bears
regular stamps, signatures or other external signs provided by law, as appropriate (article 129 of the Federal Code
of Civil Procedure).
1.7. Notaries' tariffs
There is no applicable general system of notaries' tariffs. In fact, such a system is established in few federal
states, including the Federal District and Veracruz. It may
be that in other states it is provided by law and although
it has actually been issued, in practice it is meaningless
either due to its age or because of the complexity of its
application or because it is out of date due to the recent
financial inflation in Mexico.
1.8. Professional organisations
Most of the notarial laws in the Republic of Mexico
contemplate an association as an institution that obligatorily groups together all the notaries in the federal state.
From a national perspective, the association known as
the Asociación Nacional del Notariado Mexicano
(ANNM)4 (National Association of Mexican Notaries)
was founded in 1955. All of the notariates in the country
1.6.2. Open or closed record
When a document has been drafted, it is issued on folios or in books authorised by the local government, either
in the form of an “open” record or a “closed” record.
The folios making up the “open” record have a consecutive identification number and are subject to documenta-
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3
The new notarial laws of Veracruz, Tabasco and Nayarit already require the use of the kinegram (article 136 of the Veracruz notarial
law) or hologram (article 40 of the Tabasco notarial law and article
148 of the Nayarit notarial law).
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J. A. Márquez González, National Report Mexico
are voluntarily affiliated to this body and it also includes,
in accordance with its statutes, the Presidents of the local
notarial Associations and Councils throughout the country, which means that it is highly representative at a national level, although it is true that not all notaries are affiliated to it.
2. Civil Law
2.1. Civil law in general
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2.3. Alienation of immovable property
2.3.1. Requirements in terms of form
A contract of purchase and sale is required to adopt a
certain specific form when it deals with real estate properties. The CCFD provides that alienations up to the value of 365 times the minimum general daily salary of
Mexico City (approximately $ 16,100 pesos, equivalent
to approximately USD 1,500) may be carried out in a private document before two witnesses, with the signatures
being confirmed before a notary, a judge or a registrar.
This is also the case with operations of creation of transfer of real rights for the same sum. Contracts relating to
alienations carried out by the government for poor people
may, on the other hand, dispense with the witnesses and
the certification of signatures. It should be clarified that
these social-interest contracts are almost always granted
a 50% reduction of the tariff. All contracts that exceed
that amount of USD 1,500 must be executed in a public
deed before a notary.
The Código Civil del Distrito Federal (CCDF) [Civil
Code of the Federal District (CCFD)] has been in force
since 1932 and has been subject to considerable changes
in recent years. It continues to be profoundly influenced
by the Napoleonic code of 1804 and is, in general, structured in quite a similar way.
All the codes in the Republic are very similar, but that
does not mean that there are no differences between
them. Some of those differences are quite significant.
For example, most of the codes contemplate the doctrine of “legal act”. In fact, articles 1792, 1973 and 1859
of the CCFD contain the definitions of agreement and
contract, obeying in this regard the French theory enshrined in the Code of Napoleon. Nevertheless, some
codes differ from this system of doctrine. This is the case
with the civil codes of Quintana Roo (articles 135-425),
Coahuila (articles 1899-2198) and Guerrero (articles
1593 et seqq.), which adhere to the theory of “legal business”.
The oldest civil codes in the country are those of Veracruz (1932), Nuevo León (1935), Michoacán (1936),
Chiapas (1938), Hidalgo and Sinaloa (1940), Campeche
and Oaxaca (1943), San Luis Potosí (1946), Aguascalientes (1947), Durango (1948), Sonora (1949), Colima
(1953), Guanajuato (1967), Baja California and Chihuahua (1974) and Tlaxcala (1976). The newest are those of
Quintana Roo (1980), Nayarit (1981), Puebla (1985), Zacatecas (1986), Tamaulipas (1987), Querétaro (1990),
Guerrero and Yucatán (1993), Morelos (1994), Jalisco
(1995), Baja California Sur (1996), Tabasco (1997), Coahuila (1999) and, finally, Estado de México (2002).
To sum up, the procedure for executing a public deed
may be summarised as follows:
- First, the notary is obliged to obtain a certificate from
the public registry office relating to the existence or
otherwise of encumbrances in connection with the
property to which the transfer relates.
- This request also serves as a preventive notice in which
the disclosed transaction is mentioned. The registrar issues a note of submission, which is valid for 30 calendar days.
- When the deed has been signed, another preventive
notice is issued by the notary, but now with the addition of the date of the deed and its signature.
- The notary must then continue with the procedure of
payment of fees and taxes relating to the transaction in
question and when they have all been paid, he must issue the respective transcript for its final entry on the
public register.
2.2. Property law
2.3.3. Entry on the register
Book Two of the CCFD deals extensively with possession, ownership, usufruct, use, habitation and easement
and is not until the Second Part (Various types of contract) of Book Four (Obligations) that it examines the alienation of immovable property in each of the specific
contracts in question.
In our law, the contract of purchase and sale is consensual. In fact, in accordance with the provision contained
in article 2248, “A purchase and sale will exist when one
of the parties to the contract agrees to transfer the ownership of a thing or a right and the other party, in turn,
agrees to pay a certain price for them in money”. In general, the sale is perfected when the parties have agreed on
the considerations, even though these may not yet have
been physically delivered.
The institution of registration operates according to
the principles of public recording, entry, speciality, consent, successive intervals, request, priority, legality and
presumption of accuracy of the register.
Article 3042 of the CCFD states that the following acts
must be registered:
- Titles whereby dominion, original possession and other real rights on immovable property are created, declared, recognised, acquired, transferred, amended,
restricted, encumbered or extinguished;
- The creation of family property;
- Contracts for lease of immovable property for a period of over six years and leases in which more than
three years' rent is paid in advance; and
2.3.2. Execution in a public deed
4
Internet: www.notariadomexicano.org.mx/
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J. A. Márquez González, National Report Mexico
Other titles that the law expressly orders to be registered.
2.4. Contracts with property promoters
In Mexico, this type of contract is partially governed by
the Ley Federal de Protección al Consumidor (Federal
Consumer Protection Law). Articles 73-76 of this law
govern transactions involving immovable properties and
provide that related acts will only be subject to this law
when the party providing the property is a real-estate developer, builder, promoter or other person involved in advising and selling houses to the public that are intended
for dwellings or when the consumer is granted the right to
use properties through the system of time sharing in accordance with articles 64 and 65 and that such contracts
must obligatorily be registered at the Federal Consumer
Protection Agency. Also, the contract in question must
comply with a number of minimum requirements that are
governed in detail in the law (articles 73 bis and 73 ter).
2.5. Property in condominium and surface area occupancy rights
Property in condominium is governed in Mexico by a
specific law from 1999 named the Ley de Propiedad en
Condominio de Inmuebles para el Distrito Federal
(LPCI) (Law of Property in Condominium of Immovable
Property for the Federal District), which governs its creation, alteration, organisation, functioning, administration and termination. There are three types of condominium according to its structure: vertical, horizontal and
mixed. It may be used for housing, commerce or services,
industry and mixed use.
The creation of the system requires a statement of will in
a public deed executed before a notary. The deed creating
the system of property in condominium must be entered at
the public registry after the relevant fees have been paid.
Surface area occupancy rights are not expressly mentioned in the CCFD.
2.6. Restricted real rights on immovable property
The real rights enshrined in our legislation are those of
ownership, co-ownership, usufruct, use, habitation, easement, pledge and mortgage.
The right of ownership is contemplated in articles 830937 of the CCFD in relation to the provisions contained
in article 27 of the Political Constitution of the United
States of Mexico (PCUSM):
Land and water within the bounds of Mexican national
territory are originally owned by the nation, which had
and has the right to transfer ownership of them to private
individuals, thus constituting private property. Joint stock
companies may own rural land, though only the area that
is necessary to fulfil their object. The law containing the
regulations on this matter will regulate the capital structure and minimum number of shareholders of these companies so that the land owned by the company does not
exceed the limits on pequeña propiedad (small agrarian
private ownership parcels) in relation to each shareholder. Likewise, the law will state the conditions for foreign
participation in those companies.
Notarius International 3-4/2005
Another type of restriction relates to the acquisition of
rural land by joint stock companies (only to the area that
is necessary to fulfil their object) and to the creation of
family property (which cannot be alienated and cannot be
attached, as stated in the same article 27, section XVII of
the PCUSM).
With regard to the right of pledge, we must clarify that
a recent reform in 2003 amended the General Law on
Credit instruments and Transactions, the Commercial
Code, the Law on Credit Institutions, the Law on the Securities Market, the General Law on Mutual Insurance
Institutions and Companies, the Federal Law on Deposit
Institutions and the General Law on Auxiliary Credit Organisations and Activities to allow pledges without transfer of ownership and other types of guarantees, among
other things.
3. Family law
The legal system relating to the family is included in
the Civil Code, except in the cases of the states of Hidalgo and Zacatecas. In fact, these two federal states have
separate codes of family law.
3.1. Matrimonial law
Some codes define the institution of marriage. These
include the civil code of Veracruz, article 75 of which
states as follows: “Marriage is a union between one single man and one single woman who live together to carry out the essential purposes of the family as a social and
civil institution”. In the case of the CCFD, the institution
is not defined and the code only contains the clarification
that marriage must take place before the officials established by law and observing the formalities that the law
requires.
Neither is it common for civil codes to define the concept of the family. Nevertheless, the civil codes of the
states of Aguascalientes (747) and Guerrero (article 374),
the Family Code of Hidalgo (article 340), the civil codes
of Jalisco (article 778), Michoacán (article 120), Querétaro (article 135), Quintana Roo (article 1190), Tamaulipas (article 663) and the Family Code of Zacatecas (3rd
article) contain dogma defining the concept.
Some civil codes classify marriage as a social and civil
institution (Baja California, Hidalgo, Jalisco, Querétaro,
Veracruz), whereas others simply state that it is a contract
(Federal District, Oaxaca and Puebla). We should point
out that article 120 of the Civil Code of Morelos states
that, “The Morelian family is a natural grouping...”.
3.2. Celebration of marriage
The capacity to enter into matrimony. Civil legislation
establishes a minimum age for the bride and bridegroom.
The bridegroom must be at least sixteen years of age and
the bride must be at least fourteen years of age and this
provision coincides in almost all the civil codes in the
Mexican republic.
The states of Puebla and Jalisco impose the same minimum age on the bride and the bridegroom – sixteen
years of age (articles 300 and 260, respectively), while
the Federal Code of Hidalgo requires a minimum age of
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J. A. Márquez González, National Report Mexico
18 (article 30 section II), as does the Civil Code of Guerrero (article 412). We should point out that article 157 of
the Civil Code of Baja California Sur imposes a minimum age of 18 for the man and 16 for the woman.
If necessary, dispensations of age can be granted for serious, justified causes. This occurs, in any case, with minors who, in order to marry, require the consent of their
progenitors or, if their parents are not living, of their
grandparents. The law also provides that, in the absence
of parents or grandparents, consent must be given by
guardians and, in extreme cases, by the judge of the family court.
3.3. Divorce
3.3.1. Administrative divorce
Article 266 of the CCFD state specifically that, “Divorce dissolves the marital union and renders the spouses free to enter into another union”. The simplest, quickest way in which a divorce can be obtained is known as
an administrative divorce.
The marital union may be dissolved through a simple
declaration by both spouses when they are both of legal
age and have no children below the age of eighteen and
have no assets or have liquidated the property held jointly by the spouses, if any (article 272).
3.3.2. Judicial divorce by consent
The second type of divorce is somewhat more complex. It presupposes that the spouses wish to divorce, but
do not fulfil the conditions provided in the first paragraph
of article 272, i.e., they are not yet of legal age or they
have children or they have not liquidated the property
held jointly by the spouses.
If any of these situations apply to the spouses, they are
obliged to submit an agreement relating to these points to
the family court. When approval has been obtained, the
procedure continues on a routine basis.
It is important to specify that both procedures, both the
administrative procedure (article 272 of the CCFD) and
the judicial procedure for prior approval of the agreement
(article 273 of the CCFD) cannot under any circumstances be requested until one year has passed from the celebration of the marriage, whereby the legislator ensures
that it is not the result of a passing whim or an impulsive
decision by the spouses.
3.3.3. Divorce due to a serious cause
Unlike the previous two types, the third and final type
of divorce in our law takes place due to the existence of
a serious cause, as provided in detail in article 267 of the
CCFD, and naturally does not entail the consent of both
spouses.
The procedure for requesting this type of divorce is also provided in the Code of Civil Procedure for the Federal District, though in a different section since there is no
specific procedure for it, it being processed through the
procedures of ordinary proceedings, which are governed
in articles 251 et seqq. of that same legal text.
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3.4. Marital property regime
The Civil Code expressly provides that a marriage
contract must be made, according to the regime for property held jointly by the spouses or separation of property
(articles 98, 178 CCDF).
3.4.1. Property held jointly by the spouses
Depending on the matrimonial contract, this regime
may include any property owned by the spouses, not only
at that moment but also any property that they may acquire in future, is included in a fund of property. In the
marriage contract the spouses may define which property is jointly held. In the case of immovable property being made joint property, the contract that governs the
joint property must be executed in public deed before a
notary and must also be entered at the Public Land
Registry for them to take effect vis-à-vis third parties.
As a general rule in most states, unless the spouses
have agreed otherwise, the joint property comprises all
property acquired by one or both of the spouses after the
date of marriage (community of acquisitions). However,
property acquired by a gift to one of the spouses only or
by succession or testamentary legacy or by the whim of
fortune, remains separate property of the said spouse (as
well as property acquired prior to the marriage) (article
172 CC Chihuahua, article 182 quintus CCDF, articles
303-306 CC Jalisco, article 207 CC Oaxaca, article 338
CC Puebla, articles 735-738 CC Quintana Roo, articles
196-201 CC Tabasco, article 173 CC Tamaulipas, article
172 CC Veracruz).
3.4.2. Separation of property
In the regime of separation of property, the spouses retain ownership and administration of the assets that belong to them under the contract, along with any income
that may be generated from them. This is precisely the
opposite situation to property held jointly by the spouses.
3.4.3. Legal presumptions
In practice, an increasing number of couples prefer the
regime of separation of property, although it is true that
previously most spouses chose to hold their assets jointly.
It is also clear that an important reason for this is that
when no marriage contract is executed, many civil codes
in the Republic establish the legal presumption that the
property regime is that of property held jointly by the
spouses. This is, in fact, the general rule specified in the
following civil codes: the Civil Codes of Chihuahua (article 165), Morelos (article 141), Nuevo León (article
178), Puebla (article 338), Quintana Roo (article 719),
Tabasco (article 180) and Veracruz (article 166). The presumption is of property held jointly in the following legal
systems: Aguascalientes (article 209), Jalisco (article
282), Oaxaca (article 206), Sonora (article 270) and Tamaulipas (article 172).
Furthermore, the following codes expressly contemplate a presumption which is directly contrary to this:
Campeche (article 189), Guanajuato (article 176), Guerrero (article 437), the Federal Code of Hidalgo (article
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60), the Civil Codes of Michoacán (article 173), Querétaro (article 166), Tlaxcala (article 60) and Yucatán (article
117) and the Federal Code of Zacatecas (article 138) and
separation of property will then be considered as established, with the relevant legal effects.
The other codes contain no express provision in this regard.
3.4.4. Marriage Contracts on separation of property
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require permission: Campeche (articles 185 and 186),
Chiapas (articles 171 and 172), Guerrero (articles 432
and 433), Hidalgo (articles 176 and 177), Michoacán (articles 170 and 171), Oaxaca (articles 173, 174 and 175),
Quintana Roo (articles 712, 713 and 714), San Luis Potosí (articles 159 and 160), Sinaloa (articles 174 and 175),
Tabasco (articles 173, 174 and 175), Tlaxcala (article 58)
and Zacatecas (articles 131 and 132).5
3.6. Maintenance and alimony
The contract that establishes separation of property
must be recorded in an authentic act if that is the case,
except when made prior to the marriage (article 180
CCDF). In any case, it must contain a specific inventory
for each solely-owned asset and any debts.
The most important legal consequence of separation of
property is, naturally, the unquestionable ownership of the
solely-owned assets. Thus, the income from assets continues to belong to the spouse that owns them. It is also expressly established that each spouse has the sole right to acquire and manage income from services provided by them.
There is a very important exception to this relating to
cases in which the spouses acquire property jointly by donation, inheritance, bequest, gift or any other title free of
charge. In this case, both spouses are responsible for the
management of the asset and it is considered that the relevant division must be carried out.
Neither of the spouses may charge the other fees for
personal services, but a recent, somewhat controversial,
amendment in Mexico City now provides that compensation may be demanded of up to 50% of the assets acquired in the marriage (article 289 bis of the CCFD.
The concept of maintenance contained in Mexican law is
extremely broad. Thus, article 308 states that “Maintenance consists of food, clothes, housing and treatment in
the event of illness. As far as minors are concerned, maintenance also includes the necessary costs of primary education for the person receiving the maintenance and to provide that person with some honest trade, art or profession
appropriate to his or her sex and personal circumstances”.
In the case of divorce, the general principle established
in article 302 should apply: “The spouses must provide
alimony for each other; the law will determine when this
obligation continues to exist in cases of divorce and other cases stated in the law itself”.
Article 288 states that in cases of necessary divorce, the
guilty party may be ordered to pay for alimony to the innocent spouse and even in cases of divorce by mutual
consent, the former wife may receive alimony for the
same length of time as the duration of the marriage,
provided that she does not have sufficient income or does
not find another partner. The former husband has the
same right, but he must prove that he is unable to work
and lacks sufficient income.
3.5. Consensual property regimes and marriage contracts
3.7. Non-marital joint property (homosexual or heterosexual) or marriage between homosexuals
As we have already seen, our law allows the spouses to
make any express marriage contract that they see fit either to create property held jointly by the spouses or establish separation of property. In any case, the contract
defines their situation with regard to property.
However, the law establishes the legal presumption that
everything that is not expressly stipulated must be governed by the general provisions applying to property held
jointly by the spouses (articles 183-206 bis of the CCFD).
Section V of article 98 states that an application to marry
must necessarily be accompanied by an agreement made
by the prospective spouses with regard to their assets,
which must clearly state the type of system agreed. Other legal systems, on the other hand, are much more specific in that regard.
The second paragraph of article 171 of the Civil Code
of Veracruz states that, when the presumption has been
applied, the rules provided for civil societies or co-ownership will apply as far as possible. Nevertheless, a recent
reform now requires the simultaneous presence before a
notary of both spouses in an acquisition in order for any
asset to be considered as an indivisible, communal asset.
Furthermore, most federal states in the republic no longer
require the need for judicial authorisation to make
agreements between spouses. Hardly a dozen states still
3.7.1. Cohabitation without marriage
This has been established, since our civil law attaches
particular importance to the institution of marriage. Proof
of that is the complex solemnity of the requirements for
its celebration (articles 97-113 of the CCFD) and in the
inclusion of basic principles governing the origin and stable development of the family (4th article of the PCUSM;
articles 162, 163, 164, 168 of the CCFD; article 940 of
the Code of Civil Procedure of the Federal District).
In the philosophical dogma relating to this context, it is
clear that the legislator attaches small importance to other types of institutions that in some way differ from the
legal formality of the institution of marriage. This is the
case, in fact, with relationships occurring between unmarried people. What in ordinary language is known as a
“unión libre” (free relationship) is referred to as “concubinato” (cohabitation) in our civil law.
Nevertheless, from the social point of view, free relationships are nowadays common either for reasons of mu5
FERNANDO ANTONIO CÁRDENAS GONZÁLEZ, „Autorización judicial
para contratar entre cónyuges“ (Judicial authorisation to make
agreements between spouses), in escribano, the official journal of the
ANNM (Mexican Association of Notaries), AC., no. 28, Mexico,
2003, page 22.
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J. A. Márquez González, National Report Mexico
tual conviction – deriving from a different approach to life
– or for reasons imposed by present-day social and financial realities. In the light of this, the legislator has been
obliged to deal with the problem in one way or another.
Most of the civil legal systems in the Republic do not
legally acknowledge the possibility of cohabitation.
However, although they do not specifically acknowledge
the concept, these legal systems nevertheless allow the
legal regulation of certain of their consequences.
Nevertheless, many reforms on this aspect have been
incorporated into the CCFD and there is even a special
chapter on the concept (chapter XI, Cohabitation, articles
291 bis to 291 quintus). This code contemplates rights of
succession (article 1368, V), maintenance (article 291
quáter), cases of domestic violence (323 quintus), impediments due to kinship by marriage (294), the possibility
of adoption (391), creation of family property (article
724) and even presumptions of law on filiation (383).
In the rest of the Republic, the civil codes of the states
of Baja California Sur, Guerrero and the Federal Code of
Hidalgo state that cohabitation is the source of the obligation to provide alimony and the civil codes of Tabasco, Tlaxcala and the Federal Code of Zacatecas establish
equality between spouses and cohabitants with regard to
this obligation.
Some federal states establish other requirements for
this obligation to provide alimony to exist: the CCFD requires five years' cohabitation, that there must have been
children and that neither of the cohabitants have married
a third party. The obligation is invalid if there is more
than one cohabitant (the civil codes of Chihuahua, Morelos, Sonora and Yucatán coincide on this point). Articles
241 and 242 section II of the Federal Code of Zacatecas
also require that the union should have lasted more than
five years. Nevertheless, the Civil Code of Chiapas states
that cohabitation must have taken place for only three
years, that the beneficiary has an honest lifestyle and that
both cohabitants have remained unmarried. It also specifies that if the male is disabled and has no assets for his
subsistence, he may receive alimony from the female.
The civil codes of Tamaulipas and Veracruz coincide in
the requirement that the cohabitants should have lived together as a couple for only three years – or less if there
are any children -, provided that they do not marry a third
party. The Civil Code of Querétaro states that the obligation to provide alimony continues to exist throughout the
duration of the cohabitation and may even be prolonged,
when cohabitation has ended, for a period equal to its duration, provided that the person receiving alimony has no
other partner and lives honestly.
3.7.2. Homosexual couples
The laws of Mexico do not recognise homosexual couples.
3.8. Children
Representation of children by their parents. In Mexico, children are subject to parental authority up to the
age of 18. The parents, in fact, are the minor's legitimate
representatives and possess the legal right to manage
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their assets and represent the children in court. However,
they can only alienate or encumber immovable property
and valuables in cases of absolute need or clear benefit
and with the prior authorisation of the judge (articles 425442). Such permission is processed in voluntary jurisdiction proceedings.
To date, very few civil codes in the Republic contain
specific titles or provisions relating to childhood or minority, although the following civil codes do contain such
provisions: Guerrero (article 35), Jalisco (article 567 et
seqq.), Quintana Roo (article 984 et seqq.), Tabasco (article 404 et seqq.) and Tlaxcala (article 247 et seqq.).
At the federal level there is a Ley para la Protección de
los Derechos de Niñas, Niños y Adolescentes (Law for
the Protection of the Rights of Girls, Boys and Adolescents) that was passed by President Zedillo in 1999. Zacatecas, the Federal District and Veracruz also have specific laws on these matters.
3.9. Power to provide for one's own disability
This concept does not yet exist in Mexico, although
certain excellent case-law studies have been carried out
on this matter.
4. Law of succession
4.1. General observations
In our country there are two types of succession: testate
and intestate. The first type derives from the making of a
will (an act that the law describes as highly personal, revocable and free). The second type occurs precisely in the
absence of a last will and testament. The act of making a
will is individual and therefore joint or reciprocal wills
are not permitted. There are two ways to inherit: universally, in the capacity of heir, and privately in the capacity of legatee.
4.2. Legal succession
In accordance with the provisions contained in article
1599 of the CCFD, legal inheritance occurs precisely in
the following circumstances:
- When there is no will or the will that was made is void
or has become invalid;
- When the testator did not dispose of all his assets;
- When the condition imposed on the heir is not fulfilled;
and
- When the heir dies before the testator, repudiates the
inheritance or lacks capacity to inherit, if no substitute
has been appointed.
The moment when the estate is shared must go back to
the decease of the author of the will. For that reason, the
concept known in other legal systems as trust estate does
not exist in our legal system. In fact, article 1649 of the
CCFD provides as follows: “Succession occurs at the
moment of decease of the principal of the estate...”, while
article 1660 provides as follows: “The effects of acceptance or repudiation of the estate are always backdated to
the date of the decease of the person from whom the estate is inherited”. These provisions are repeated in article
1290 relating to the case of legatees.
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4.2.1. Multiple heirs
The total inheritable estate takes the form of communal
property in the heirs' favour, which thus remains as an integral unit up to the moment when the division must be
carried out. Therefore, the heirs may in fact dispose of
their right in the total inheritable estate in abstracto, but
they cannot materially dispose of the things making up
the net worth of the estate.
Thus, article 2047 provides that when the right to an estate is assigned, there is an obligation to assume liability
only in the sole capacity of heir if the things that form part
of it are not listed or identified. Also, article 2291 warns
that any successors can only alienate their rights after the
decease of the person from whom they are inheriting.
One important restriction nevertheless exists. This relates to the right of pre-emption (tanto) that is retained by
the co-heirs in the case of sale of the rights to inherit.
Thus, the potential seller must give notice through a notary, by judicial means and with two witnesses, of the basis on which the sale has been arranged. The co-heirs
have a term of eight days to assert their right. The penalties are serious if this step is omitted because if the sale
takes place, it will be void.
4.2.2. Legal heirs
Who has the right to inherit in legal succession? In general, the law provides that the descendants, ascendants,
spouse, collateral relatives within the fourth degree
and cohabitants will inherit, in that precise order. Only
in cases where none of the above exist does the department of public welfare intervene.
The civil codes of the states of Guanajuato (article
2872), Oaxaca (article 1502) and Puebla (article 3360)
consider collateral relatives up to the sixth degree to be
legitimate heirs.
4.2.3. Who inherits in the absence of heirs?
Sometimes the department of public welfare (article
1636 of the CCFD), other times the State Attorney (article 1569 of the Civil Code of Veracruz), for example.
Nevertheless, it is worth pointing out that the civil codes
of the states of Querétaro (article 1498), Puebla (article
3361) and Tlaxcala (article 2914) divide up the estate,
awarding part to the department of public welfare and another part to the local university. The civil codes of Guanajuato (article 2874) and Zacatecas (article 811) go further and institute the local public university as the sole
heir, without considering the department of public welfare. The civil codes of Morelos (article 777), Quintana
Roo (article 1539) and Sonora (article 1712) institute the
State as the heir.
Estado de México institutes the Sistema para el Desarrollo Integral de la Familia del Estado de México (System
for the Integral Development of the Family of Estado de
México) as successor in the absence of any legitimate heir,
in accordance with the provisions contained in article 1465.
4.3. Forced shares and maintenance obligations
The institution of a forced share in the inheritance (legítima) such as it exists, for example, in Spanish law,
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which institutes obligatory heirs in respect of two thirds
of the estate and only considers the remaining third as being freely disposable (articles 806-808 of the Spanish
Civil Code) does not exist in our legal system. Nevertheless, it is true that this system existed in the past in the
1870 Civil Code. When this legislation was amended in
1874 the institution of the “legítima” portion of assets
was abandoned and the system was converted to that of
the current code, which allows much greater freedom to
make wills, although, in truth, subject to certain reservations.
In fact, there is a significant series of restrictions on the
maintenance that must be assured for minors under the
age of eighteen; descendants; the surviving spouse when
he or she is unable to work; ascendants; cohabitants and
siblings and other collateral family members within the
fourth degree, in certain cases (article 1368).
One specific rule governing the analysis of these provisions that restrict the freedom to make a will relates to the
obligation to provide maintenance only in the event that
there are no relatives to a closer degree or such relatives
are unable to provide it. Thus, in his or her will, the testator must list the persons who, pursuant to this provision, have a direct duty to fulfil that obligation due to
their proximity of kinship.
It is of interest at this point to refer to the consequences
of failure to comply with the obligation to provide maintenance. The Civil Code states that the last will and testament becomes inofficious, and by that it means that the
will must be reduced precisely by a proportion equal to
the amount of maintenance not provided. Thus, the person omitted in the will only has the right to receive the
pension that should have been paid to him or her, but the
will continues to be intact in all other respects in accordance with the general principle of law utile per inutile
non vitiatur (article 2238).
Providing a framework for all these provisions relating
to testamentary obligations, article 1376 states that the
obligation to provide maintenance, although incumbent
on the principal of the estate, is finally charged to the total inheritable estate that is transferred. The only exception to this is when the testator specifically charges one
of the participants with this obligation to provide maintenance (article 1376).
4.4. Wills and contracts on succession
The next major chapter in our civil law on succession
relates to the type of will. For this purpose, our Civil
Code describes a will as “a highly personal, revocable,
free act whereby a person with capacity disposes of his
or her assets and rights and declares or fulfils duties for
after his or her decease” (article 1295).
The first section, which relates to wills in general, contains provisions regarding the manner in which wills are
made, imposing, for example, the obligation that the act
of making a will must be a strictly unilateral act. Thus,
the making of reciprocal wills, i.e. where two people each
make a last will and testament in favour of the other or
both persons make wills in favour of a third person, is
prohibited (article 1296).
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J. A. Márquez González, National Report Mexico
The capacity to make a will is presumed. That, in effect, is the formulation contained in article 1305, although in a negative sense. Article 1306 provides as follows: “The following persons do not have the capacity to
make a will: “I. Minors, either male or female, under the
age of sixteen; and II. Persons who are habitually or temporarily not of sound mind”. This provision therefore repeals the general rule contained in article 646, that establishes a legal age of 18 or over.
We should state that only the civil codes of the states of
Michoacán (article 1171), Puebla (article 3065), Quintana
Roo (article 1252), Tabasco (article 1386) and Tlaxcala
(article 2641) state that the legal age to make a will is 14,
since the rest of the country's civil legislation (for example, article 1306 of the CCFD and article 1239 of the Civil Code of Veracruz) require the testator to be 16 or over.
4.5. Types of will
Our Civil Code contemplates a great many types of
will. In principle however, wills can be classified under
just two overall headings, i.e.: ordinary and special. Ordinary wills under our law include open public wills,
closed wills, simplified wills and holograph wills (article
1500). Special wills include private wills, military wills,
maritime wills and wills made overseas (article 1501).
We should also note that the codes of Aguascalientes
(articles 1411-1 413), Coahuila (articles 972-974), Chihuahua (article 1406), Oaxaca (articles 1403-1405),
Puebla (articles 3259-3261) and Tlaxcala (articles 28032807) do not list holograph wills and that, incidentally,
the code of Nayarit does not contemplate wills made
overseas or military wills or maritime wills. The new
Civil Code of the State of Mexico now only contemplates
open public wills, simplified public wills, military wills,
maritime wills and wills made overseas (articles 6,1206,121). The Civil Code of Veracruz (article 1454) refers
to what are known in other legal systems as “closed public wills” as “closed notarial wills” and also calls holographs “autographs” (article 1483). However, both changes are solely of form. The Civil Code of Jalisco already
contemplates electronic wills (article 2848) and the civil
codes of Guerrero and Querétaro allow wills made in the
air (articles 1459 and 1381, respectively). The Civil Code
of Guerrero even authorises wills made in spacecraft
“from lift-off onwards” (ditto, 1381).
4.5.1. Open public wills
These wills are classified as “public” and “open” due to
the fact that they are made before an attester, in other
words, a notary public, and are therefore necessarily entered in the notarial records. Until recently, they were
drafted, signed and attested in the presence of three attesting witnesses.
Most of the codes in the Republic continue to require
the formality of three attesting witnesses when executing an open public will. Exceptions to this are the civil
codes of the states of Nayarit (article 2647), the Federal
District (article 1513), Jalisco (article 2842), Baja California Sur (article 1418), Veracruz (article 1444), Querétaro (article 1388), Colima (article 1407) and Sonora (ar-
209
ticle 1589), which establish that two witnesses may attend
at the request of the testator or the notary. The requirement is merely optional. In practice the act takes place
without witnesses and, in fact, the definition of a will in
the dogma has been reduced to the following: “An open
public will is a will that is made before a notary”, thus superseding the previous formula which stated: “... before a
notary and three witnesses” (article 1511 of the CCFD
and article 1444 of the Civil Code of Veracruz). The Civil Code of Chihuahua, with amendments from December
2002, still retains the three witnesses (article 1415).
This type of will requires close involvement and supervision by the notary, making him responsible at all times
for drafting the clauses, ensuring that it conforms strictly
to its author's wishes, reading out the will immediately
after it has been made, the setting the respective signatures and the final witnessing of the act.
Concrete provisions applying very specifically then
govern the conduct of the notary responsible: articles
1514 and 1516-1518 govern exceptional circumstances
such as when the testator cannot or does not know how to
sign, when he or she is completely deaf or blind or does
not know the local language. Article 1519 contemplates
the principles of concentrated single act and attesting to
full compliance with the formalities, subject to the penalties (article 1520) of invalidity of the will and liability for
the notary.
4.5.2. Closed public wills
Unlike open public wills, this type of will is not entered
in any official record and for that reason is considered as
“closed”. Nevertheless, it is still public because it involves the notary and witnesses.
Wills of this type can be written by the testator, but also by another person, and can even be written on ordinary
paper. These documents are characterised by the fact that,
immediately after they have been drafted, paraphed and
signed, they must be wrapped in a sealed paper. It must
then be exhibited to the notary in the presence of three
witnesses, declaring that the paper contains his or her last
will and testament. This means that not even the attester
can know the terms of the will. The witnesses are also unable to discover the terms of the will and the only way
that an outside party can possibly discover them is if another person must sign at the request of the author if the
author cannot or does not know how to sign and it is clear
that this person must enjoy the author's full confidence.
This type of will therefore completely fulfils the requirement for confidentiality while still being formally submitted to a notary.
The notary, in fact, attests to the execution of the will
and must also ensure that all the formalities inherent in
acts of this type are fulfilled. In accordance with the provisions contained in article 1526, the notary must also attest to the cover itself of the document and it must then
be signed by the testator, witnesses and the notary.
The next step consists of the physical delivery of the respective document by the testator to the notary and the notary must then enter in his records the date on which the
will was witnessed by him and returned to its author. This
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document may be kept by the testator himself, given to a
person he trusts or deposited in the judicial archive.
The notaries are responsible for the formalities to be
observed with regard to wills and they are subject to serious penalties for failing to observe those formalities.
Articles 1520 and 1534 of the CCFD state that failure to
carry out any formality will mean that the will is invalid
and the notary must assume full liability for any loss and
damage and, in addition, will be penalised by loss of his
office. Even the omission of the term “autorizado” (witnessed) on the notary's record – an irregularity which
does not affect the consequences of the act – will be penalised by six months' suspension.
Other civil codes, such as those of Guanajuato (articles
2789 and 2775) and Quintana Roo (articles 1464 and
1451) penalise the notary by loss of his office. Others,
such as those of Baja California Sur (articles 1438 and
1424), Jalisco (article 2857), Nayarit (articles 2668 and
2654) and Querétaro (articles 1413 and 1397) make the
notary liable only for loss and damage, in addition to an
appropriate administrative penalty (this latter only in the
case of Nayarit), but do not establish loss of the post (although it is true that they contemplate a penalty of six
months' suspension in a number of circumstances).
The Civil Code of the state of Michoacán (article 1384)
only orders the payment of loss and damage and does not
contemplate any suspension or loss of office. The states
of Veracruz, México and Chihuahua recently repealed articles that provided severe penalties on these matters.
4.5.3. Simplified public wills
Article 1549 bis, relating to simplified public wills, was
added to the CCFD. This particular type of will is defined
as follows:
A simplified public will is a will relating to immovable
property that is used or that is to be used for housing by
the person acquiring it that is executed before a notary
in the same deed as that which records its acquisition
or a deed that records the regularisation of an immovable
property by the authorities of the Federal District or any
office or entity of the Federal Public Administration or in
a subsequent act.
In accordance with that same provision, the requirement to be fulfilled as far as the amount is concerned is
that the value of the property must not exceed $ 314,000
Mexican pesos (approximately USD 35,000) or, in other
words, the equivalent to 25 times the minimum salary in
force in the Federal District, stated as a yearly amount.
Simplified public wills are contemplated in the CCFD
(article 1549 bis) and have also been included in the civil codes of Baja California Sur (article 1454), Chihuahua
(articles 1406 and 1455), Colima (articles 871 bis and
1446 bis), Estado de México (article 6,136), Nayarit (article 2683 bis), Nuevo León (article 1446 bis), Querétaro
(article 1460 bis) and Sonora (article 1625 bis). The few
variations among them relate mainly to the value of the
property.
Nevertheless, this type of will is a complete novelty
that is a clear departure from the traditional concept of a
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will. We have already seen how the will is executed in the
deed of acquisition or regularisation itself, as though it
were one more clause of that deed. It should also be noted that such wills can also be executed collectively, in
other words each co-owner – as appropriate – can institute legatees with regard to his or her portion. Having
said that, there is also no impediment to allowing the
spouse to take part in the act for the relevant portion, thus
repealing the prohibitive provision contained in article
1296 discussed above.
Furthermore, it is expressly established that legatees
can demand that the property be handed over directly,
without the formality of an inventory and without giving
a guarantee.
The notarised title is issued in accordance with a specific procedure established in article 876 bis inserted in
the Code of Civil Procedure of the Federal District. By
virtue of this rule, a certified copy of the testator's death
certificate and the transcript of the simplified public will
must be exhibited to the notary. The notary will then publish the particulars of the case in the national newspapers
and will also obtain – from different offices – records relating to the existence of other wills. If there is no opposition, the notary will issue the respective deed and order
its entry at the Public Land Registry.
The final intention must be summarised in the fact that
this type of simplified will can solve, quickly and economically, the serious problems faced in this country regarding titles and regularisation of immovable properties,
particularly in view of the efforts made by the offices responsible to solve the problem in administrative procedures.
4.5.4. Wills made overseas
These wills must comply with the form required by local law and the Mexican officials of the official representation in that place will act as notaries or receivers of the
will. These officials are under an obligation to send a certified copy to the Secretaría de Relaciones Exteriores
(SRE) (Secretariat for Foreign Affairs = Foreign
Ministry), where the procedure of drafting a certificate of
delivery will be carried out and the news of the testator's
decease will be published when it has occurred.
4.5.5. Joint wills
In accordance with an express provision in our Civil
Code (article 1296) it is clearly established that two or
more people cannot make a will in the same document. This, naturally, is a clear consequence of the highly personal aspect stated the definition of a will itself (article 1295).
This prohibition on making joint wills is strict because
such a will cannot be made under any circumstances either in favour of a third party or even for the reciprocal
benefit of the persons concerned. This also includes a
prohibition on a spouse making a will in favour of the
other spouse and vice versa. Obviously this can only occur if each spouse makes a will individually, but in individual, separate acts.
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J. A. Márquez González, National Report Mexico
In any case, it is clear that an important exception to
this, expressly contemplated in our legislation by virtue
of a subsequent reform, is contained in article 1549 bis,
which is discussed above (simplified public wills).
4.6. Succession through substitution by a trustee
Even though we continue to be guided by the principle
of freedom of last will and testament (articles 1295 and
1344). It is clear in any case that the philosophy of the
Civil Code retains a framework of restrictions that limit
the testator's freedom in certain circumstances.
These restrictions can be perceived very clearly in the
case of conservation of the freedom to make a will of the
heirs themselves. Thus, substitutions of heirs or legatees
involving more than one generation, clauses that prohibit certain assets from being alienated, fiduciary dispositions and conditions that are clearly illegal are prohibited.
For example, it is expressly provided that a condition imposed on the heir to marry or not marry will be considered as not having been included.
4.7. Executorship
In legitimate succession, the executor (albacea) of the
estate is directly appointed by the judge – or by the notary -, at a meeting of all the heirs (articles 805 of the Code
of Civil Procedure of the Federal District and 1862 of the
CCFD). This meeting is only omitted if there is a single
heir or if the interested parties cast their vote in the response to the call. In accordance with the specific list
provided in the Code, the executor may be universal, special, joint and general.
Our Civil Code also refers to other representatives in
succession, i.e. the executor (ejecutor) (general or special, article 1702). This executor confines his activities to
the sums or things that have been placed under his responsibility in the total net worth of the total inheritable
estate.
Article 1728 refers to the concept of the auditor (inventor) and his duties are confined to supervising the office of the executor.
5. Company Law
There are two types of companies in Mexican civil law:
the Asociación Civil (Civil Association) and the Sociedad
Civil (Civil Company).
5.1. The civil association
In accordance with article 2670, the Civil Association
is defined as follows: “When a number of individuals
agreed to meet, in a way that is not entirely temporary, to
achieve a common purpose that is not prohibited by law
and is not of a predominantly financial nature, they constitute an association”.
The agreement must be made in writing and must contain the bylaws of the association, which are required to
be entered on the public register. The notary's involvement often extends to drafting the minutes of the general
meeting at which the association is founded and the bylaws themselves, as well as the respective notarisation of
the act.
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In view of the philanthropic nature of associations of
this type (the law states that they must not be of a predominantly financial nature), in the event of dissolution,
the assets will be put to a particular use, according to
what is provided by the statutes or according to what is
decided by the general meeting itself. However, the powers of the general meeting are restricted solely to allocating the equivalent of their contributions to the members
of the association.
What happens to the other assets? The final part of article 2686 of the law states that they must be applied to
another association, provided that the purpose of that association is similar to the association that is extinguished.
5.2. The civil company
The second type of corporate body governed by our
law is the Civil Company. Article 2688 of the CCFD
states as follows: “Through the incorporation papers, the
members mutually agree to combine their resources or
their efforts to achieve a common purpose, of a predominantly financial nature, but which does not consist of
commercial speculation”.
As we can see, the difference between civil associations and civil companies in Mexican law basically relates to their purpose, since companies have a “predominantly financial” purpose. Besides that important difference, companies have company capital, whereas associations have assets. This means that companies have equity participations and can distribute earnings, which is not
the case with associations. Also, in the case of companies, it is possible for members to assign their equity participations, whereas in associations, the rights held are
highly personal. Finally, in the case of companies, directors have unlimited joint and several liability, which is
not the case in associations.6
The incorporation papers are normally made in writing,
but the involvement of the notary is required if assets that
require it are being transferred. It must also be entered on
the register in order for it to take effect against third parties. Article 2693 states the requirements for the contents
of the incorporation papers.
It is important to clarify that the acquisition of real estate by these companies must comply with the provisions
contained in article 27, section III of the PCUSM, which
contains the following restriction:
Public or private charitable institutions whose purpose
is to help those in need, scientific research, dissemination
of teaching, reciprocal aid of their members or any other
lawful purpose may not acquire more real estate than is
absolutely necessary for their object and that is immediately or directly intended for it, subject to the regulations
contained in the law.
The obligation of members in companies of this type
includes a subsidiary guarantee for the executive members' unlimited joint and several liability; other members
only cooperate through their contributions, unless otherwise provided in the incorporation papers.
6
MIGUEL ÁNGEL ZAMORA Y VALENCIA, Contratos Civiles (Civil Contracts), Porrúa, México, 1998, pages 238-239.
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J. A. Márquez González, National Report Mexico
Finally, it is important to clarify that in Mexico the incorporation of any type of company invariably requires a
permit to reserve the name with the SRE (foreign ministry), which keeps a computer record of these names and
also of participation by foreign citizens, in accordance
with the provisions contained in articles 15 and 16 of the
Law on Foreign Investment.
5.3. Capital associations and companies
In Mexico there is a special law dating from 1934 (the
Ley General de Sociedades Mercantiles (General Law
on Commercial Companies). This law recognises various
types of company, but only two are the most common:
limited liability companies and joint stock companies. In
practice, the other types of company are practically nonexistent for various reasons.
5.3.1. Limited liability companies (SRL)
In limited liability companies the members only agree
to pay their contributions. Mexican law does not require
a minimum number of persons and only states that they
must be formed by “one or more members” although, at
the other extreme, it limits their number to no more than
25. In accordance with that, limited liability companies
frequently bear the name of one or more members although the law, furthermore, allows them to be established under one name or under a corporate name.
In any case, both names must be immediately followed
by the literal expression of the technical nature of the
company or its abbreviation – “SRL”; otherwise, the
members will have secondary, limited, joint and several
liability for all corporate obligations. If the name of the
company includes the name of a person outside the company, that person is obliged to assume liability for the
company's operations up to the amount of the largest contribution in the company.
In Mexico it is customary to add the expression “y
compañía” (and company) in the case of a corporate
name if the name does not state the names of all the members. The expression “sucesores” (heirs) is also common.
It does not necessarily mean that the original member has
died, but only that he has left the company or even that
one company has been transferred to another.
In accordance with the law, the capital must not be under $ 5,000 pesos (approximately USD 500) and must be
fully subscribed. At least 50% of its value must be paid in.
Quid iuris with regard to the form of the company? As
a general rule, all companies must be incorporated before a notary and all amendments of their Articles of Association must also be executed before a notary.
Finally, it is important to clarify, as was stated above in
the case of civil associations and companies, that this
type of commercial company also invariably requires a
permit from the SRE to reserve the name and for control
of possible participation by foreign citizens.
5.3.2. Joint stock companies (SA)
The joint stock company is the most common legal
form in practice as far as commercial companies are con-
Notarius International 3-4/2005
cerned. This company is highly versatile and has an excellent image in corporate and advertising terms. Article
87 of the aforesaid General Law on Commercial Companies states as follows: “A joint stock company is a company that exists under a name and is made up solely of
shareholders whose obligation is confined to paying in
their shares”. The minimum capital of a joint stock company must be $ 50,000 pesos, or approximately USD
5,000.
The law expressly states that joint stock companies
must be incorporated under the technical form of a
“name”. These names often take on an air of fantasy since
their form is entirely unrestricted. In any case, the law
prevents the risk of homonyms through the bureaucratic
control exercised by the SRE, referred to above. Whatever the name, in companies of this type it must invariably
be followed by the words “Sociedad Anónima” (joint
stock company) or their abbreviation, “S.A.”.
What is the legal form of a joint stock company? As is
stated above, commercial companies must be incorporated before a notary, but in this particular case they
may also be incorporated by public subscription. However, this form of incorporation is not common.
In practice, the notary himself drafts the minutes of the
general meeting to incorporate the company and the Articles of Association. Articles 95 and 101 state that contributions other than those in cash will be legalized when
the minutes of the meeting to incorporate the company
are entered in a record and that, when the incorporation
of the company has been approved, the minutes and the
Articles of Association must be entered in a record and
registered. However, the text of article 90 requires appearance before a notary.
5.4. Cooperative companies (SC)
In Mexico, cooperative companies are subject to a special law that was passed in 1994. The purpose of cooperative companies is focused on social organisation made
up of individuals on the basis of common interests and on
the principles of solidarity, their own efforts and mutual
aid, for the purpose of meeting individual and collective
needs through the performance of the economic activities
of production, distribution and consumption of goods and
services.
Cooperative companies are formed by a minimum of
five members and their financial structure is that of variable capital. As far as the necessary formalities are concerned, article 12 of the law only contemplates the need
for ratification of signatures before a public authority,
which includes notaries. When the Memorandum of Association has been signed, the cooperative company acquires legal status and has assets. This deed must be entered on the public commercial register.
As far as their system for liability is concerned, companies of this type may choose limited liability or members' supplemented liability. In the first case, the members' liability is limited solely to the payment of certificates of contribution; in the second case the members
must assume equal liability for the company's operations,
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J. A. Márquez González, National Report Mexico
according to the amount previously established. It is important to clarify that foreign citizens cannot discharge
executive or administrative posts in companies of this
type (article 7).
Finally, cooperative companies may be engaged in consumption or production of goods or services or savings
and loans. This latter type of company is subject in turn
to a specific law (the Ley de Ahorro y Crédito Popular –
Law on Popular Savings and Credit).
5.5. Foundations
The system governing foundations is contained in what
is known as the Ley de Instituciones de Asistencia Privada (Law on Private Assistance Institutions) for the
Federal District which dates from 1998. This law provides that there may only be two types of private assistance institutions: “foundations” or “associations”. Article
7 provides that the name or corporate name must always
be followed by the words “Institución de Asistencia Privada” (or IAP) (Private Assistance Institution).
In general, the creation of institutions of this type obeys
the general rules provided in civil legislation. However,
there are certain provisions that are particularly applicable. One of the most noteworthy of these is the fact that
foundations (either of a temporary or permanent nature)
may be created by a last will and testament. In this particular case we should point out that lack of capacity to
inherit (articles 1313, section I and 1314 of the CCFD)
cannot be asserted. In fact, effects of form cannot be invoked in general, thus protecting the intentions and wishes of the author and, in particular, his spirit of altruism.
5.6. Commercial registration and representation
New regulations on Public Commercial Registration
were passed recently (24 October 2003), establishing
what is known as the Sistema Integral de Gestión Registral (SIGER) (Integrated Registration Management System). This system includes electronic mercantile folios in
accordance with pre-coded forms created by the Secretariat for the Economy. A detailed registration procedure is
created for the capture, storage, custody, security, consultation, reproduction, verification, administration and
transfer of registration data through one of two reception
methods: electronic (where the notary or broker uses the
SIGER system) and physical (through the relevant reception window). When reception has been verified, a record
is sent to the notary or broker containing the sequential
number and date and time when the form was received in
order to establish the prevalence of rights on one or more
acts relating to the same folio.
The electronic signature used in the processing of this
data is the advanced or trustworthy signature, which fulfils the necessary requirements of attributability and confidentiality.
6. Private international law
6.1. Principle: Application of Mexican law
The national rules relating to this matter are dispersed.
Article 121, section II of the PCUSM establishes the lex
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rei sitae rule beyond any doubt, indicating that movable
or immovable property will be governed by the law of the
place where they are located. Also, other principal traces
may be found in articles 12-15, “Disposiciones Preliminares” (Preliminary Provisions) of the Civil Code. In
general, it is established – as is stated in article 12 of the
CCFD – that “The laws for the Federal District will apply to all persons located in the territory of the Federal
District, whether they are nationals or foreign citizens”.
The CCFD adds that it also applies to acts and events
occurring in the territory, except “when these envisage
the application of foreign law and also with the exception
of what is provided in treaties and conventions to which
Mexico is party”.
In turn, article 13 of the CCFD also establishes the lex
rei sitae rule, establishing a number of provisions on the
acknowledgement of the legal situation in other federal
states of the Republic relating to the status and capacity
of persons, real rights on property, leases and the legal
form of acts, obeying the criteria that law of the place
where they take place must apply (locus regit actum).
Finally, as far as the legal effects of acts and contracts
are concerned, the lex loci executionis rule is applied,
since it applies to the law of the place of execution.
Foreign law must be applied in the way in which it
would be applied by the relevant foreign judge, taking
substantive law as a general rule, except when rules of
conflict that refer to another legal system are to be applied. In any case, if Mexican domestic law does not contemplate foreign legal institutions, the law authorises the
application of similar institutions or proceedings. It also
contains rules on prior, preliminary or incidental matters
and, finally, the necessary harmonious application of different laws, taking into account “the requirements of equity in each specific case”.
Foreign law will not be applied when there is a fraudulent intention to avoid the application of domestic law or
when the foreign law is contrary to the Mexican legal
system. Finally, articles 284 bis of the Code of Practice of
the Federal District and 86 bis of the Federal Code of
Civil Procedure must be mentioned, since they also refer
to the application of foreign law and the powers of local
judges to collect the necessary information.
6.2. Other provisions
Outside of this general framework, it is possible to encounter other isolated provisions, such as in the following cases:
6.2.1. Wills (articles 1593-1598 of the CCFD)
This rule provides that a will made in a foreign country
will be fully effective in Mexico provided that it has been
validly executed in the country in question.
“Secretaries of Mexican legations, Consuls and ViceConsuls may act as notaries or receivers of wills for Mexican citizens overseas in cases where the dispositions of
last wills and testaments must be enforced in the Federal
District” (article 1594).
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J. A. Márquez González, National Report Mexico
For intestate successions, in general the rule of “lex rei
sitae” applies to immovables as well as to movables.
Hoever, Puebla and San Luis Potosí apply the law of domicile (in the continental sense) to movables (and lex rei
sitae only for immovables), Quintana Roo applies the law
of domicile to both immovables and movables.
6.2.2. Societies or associations (article 2736 of the
CCFD)
The rules of foreign private corporate bodies are respected in accordance with the law applicable to the act
of their incorporation (locus regit actum rule). The recognition afforded by Mexican domestic law to the capacity of the foreign corporate body cannot exceed the recognition afforded by the country of origin and it is presumed that the representative of that foreign corporate
body is, naturally, empowered to take part in any act in
which possible liability may be demanded.
6.2.3. Adoption (articles 410-E and 410-F of the
CCFD)
The law distinguishes between two types of adoptions:
- adoption “instigated by citizens of another country with
their habitual residence outside Mexican territory” is
referred to as international adoption;
- whereas adoption “instigated by citizens of another
country with their permanent residence in Mexican territory” is referred to as adoption by foreign citizens.
In the first of these cases, the adoption is governed by
the international treaties signed by Mexico. In the second
case, the provisions of the CCFD naturally apply. Finally, article 410-F adds that, when circumstances are equal,
Mexican citizens will be given preference over foreign
citizens.
The CCFD establishes a minimum age of 25 to adopt
and a minimum difference of 17 years between the person adopting and the person adopted (article 390). However, this provision is only included in the civil codes of
ten federal states in the Republic. The remainder, i.e. 22
civil codes, establish different ages ranging from 18 to 30
for the capacity to adopt and from 10 to 20 with regard to
the necessary age difference between the person adopting
and the person adopted.
6.2.4. Capacity of foreign citizens
In accordance with the provisions contained in articles
1327 and 1328 of the CCFD, foreign individuals and corporate bodies have, in general, capacity to acquire property through either testate or intestate succession, though
always in accordance with the provisions contained in the
PCUSM. There is only one restriction on this: possible
lack of international reciprocity.
6.2.5. Marital status acquired overseas
The law expressly provides that the records submitted
by the interested parties, in accordance with what is provided in the Code of Civil Procedure, will be sufficient in
order to establish marital status acquired by Mexican cit-
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izens located overseas, provided that the act is recorded
at the relevant office (article 51 of the CCFD).
6.2.6. Credit instruments issued by foreign citizens
Articles 252-258 of the General Law on Credit Instruments and Operations state that the capacity to issue credit instruments overseas or carry out any of the acts contained therein will be established in accordance with the
law of the country in which the document is issued or the
act is carried out and that Mexican law on capacity will
apply. That same law will govern the capacity of foreign
citizens to issue instruments or carry out any of the acts
contained therein in the territory of the Republic.
6.3. Documents from foreign countries
Articles 139-140 of the notarial law of the Federal District contemplate the protocolisation of documents of this
type once they have been legalized or stamped with the
apostille and translated, as appropriate, at the request of
the interested party and without any need for a court order, except in the case of powers of attorney executed before Mexican consuls.
Article 140 of the notarial law of the Federal District
states as follows: “Powers of attorney executed outside of
the Republic, when they have been legalized or stamped
with the apostille and translated, as appropriate, by an expert, must be protocolised in order to take effect pursuant
to the law. This does not apply to powers of attorney executed before Mexican consuls.”
Article 121 of the PCUSM, referred to above, is applicable at an inter-state level and articles 130-131 of the
Federal Code of Civil Procedure also reproduce these
same provisions.
The states of Aguascalientes, Baja California, Campeche, Guerrero, Nuevo León, Oaxaca (except in powers
of attorney), Tabasco, Tamaulipas, Tlaxcala and Yucatán
(10 federal states) require an express court order for
protocolisation.
At the other extreme, many states (Baja California Sur,
Chiapas, Chihuahua, Durango, Estado de México, Hidalgo, Morelos, Nayarit, Veracruz, Quintana Roo, San Luis
Potosí, Sinaloa and Zacatecas) no longer require any
court order whatsoever and only contemplate entry in
record after legalization before the notary appointed by the
parties and translation by an official expert, as appropriate.
In several cases (for example, the Federal District, Estado de México, Nayarit, Quintana Roo and Sinaloa) it is
expressly stated that protocolisation may take place without any need for a court order or judicial writ. Estado
de México adds that such protocolisation will take place
by means of the statement by the notary contained in the
instrument that it does not contain any provisions contrary to law, morality or good conduct. For its part, the notarial law of the state of Jalisco authorises the issue of
wills in two languages in parallel columns (article 127).
To conclude, the current trend with regard to the problem of validity of documents from foreign countries appears to point in the direction of abandoning the require-
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J. A. Márquez González, National Report Mexico
ment for a court order for their protocolisation and confining the need for such an act only to cases in which the
documents in question do not contain an apostille or a
consular certificate. Furthermore, a trend appears to be
starting whereby the notary himself can carry out the protocolisation if he knows the language (or any other dulyidentified person, who need not be an official expert).
Naturally, the final purpose appears to be to harmonise
these matters at national level with the international treaties and conventions that Mexico has signed.
7. Tax Law
7.1. Transfers of immovable property
The notary is responsible for the payment of the taxes
deriving from the operation in question in accordance
with the provisions contained in the Ley del Impuesto
Sobre la Renta (Income Tax Law) and articles 14 and 14A of the Código Fiscal de la Federación (Federal Tax
Code).
The income is the total amount of the consideration obtained precisely from alienation. If there is no consideration, that amount will be established at an appraisal value. Exceptions to this rule on income from alienation
consist of the hypotheses of transfer of property mortis
causa, donation or merger of companies and alienation of
certain credit instruments that have given rise to interest.
The complexity of the procedure for calculating the
annual tax depends on the transaction in question. However, it may be said, in brief, that the deductions provided in
article 148 of the same law must be applied. These deductions relate to the updating of the acquisition cost, which
will never be less than 10% of the total amount of the
transaction. Investments in constructions, improvements
and extensions and even notarial costs, taxes, fees and appraisals, commissions and agency fees can also be added.
When these deductions have been applied, the resulting
difference is referred to as the profit. Nevertheless, this
profit must then be divided by the number of years between the beginning and the end of the transaction, in
other words the acquisition date and the actual date of alienation, which period must not exceed twenty years.
The notary makes provisional payments for the alienation of immovable property in accordance with a pre-established tariff that is the result of dividing the profit by
the number of years between the acquisition and the alienation. The result is multiplied by the number of years.
The notary has a term of fifteen days from the date of
the signature in which to make this provisional payment,
always under his liability.
7.2. Income from acquisition of assets
This income is provided in article 155 of the Income
Tax Law. Deductions may also be made in this case, in
accordance with the provisions contained in article 156,
but it should be made clear that the provisional payment
amounts to 20% of the income received. The notary also
has a term of fifteen days in which to make this provisional payment, always under his liability.
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7.3. Value Added Tax (IVA)
This payment derives from transactions considered to
constitute alienation (articles 14 and 14-A of the Federal
Tax Code).
Exceptions consist of transfers of property due to decease and donations. The tax is also not payable when only the land or constructions intended for housing are alienated, except in the case of hotels (article 9 of the Value Added Tax Law).
The code considers that the moment of alienation must
be considered to be the moment when the considerations
are actually collected. From that point onwards, there is a
term of fifteen days in which to pay the tax. This tax is
calculated by applying a rate of 15% to those values and
is payable by the taxpayer, who transfers it to each separate person acquiring the assets or enjoyment of the assets
or the services.
7.4. Transfer of ownership
Locally, the tax known as transfer of ownership is
payable for all acts in which the ownership of immovable
property is transferred, including due to decease and contribution to companies, transfer of real rights, awards,
positive prescriptions, exchanges, trusts, division of coownership and dissolution of property held jointly by
spouses – on the surplus part.
For calculation of this tax, an appraisal value issued by
a qualified expert is taken as a base. The tariff varies in
each federal state of the Republic, but ranges from 0.50%
to 2% of that value. The term for payment of the tax may
also vary, but the longest term is thirty days. The notary
assumes joint and several liability with the taxpayer for
the calculation and payment of the obligation.
7.5. Entry of documents at the registry
Finally, fees derive from the entry of documents at the
Public Land Registry, provided that they contain acts
relating to immovable property or real rights. The tariffs
normally vary considerably from state to state, according
to whether the rates are fixed or whether they are established as a percentage or in terms of minimum salaries.
Minimum and maximum tariffs may also be established.
7.6. Tax on successions and donations
In this case, no special taxes are payable and it is therefore necessary to resort to the general rule established in
the above paragraphs. We should clarify that donations
between spouses or between family members in a straight
line of descent – with some exceptions – and, in general,
all other donations are exempt from payment of Income
Tax, with a maximum limit being established relating to
the total value thus received in one year (article 109, section XIX of the Income Tax Law).
8. Bibliography
For a bibliopraphy see page 199.