Family Law and the Law of Persons
Family Law and the Law of Persons
Abstract and Keywords
This chapter focuses on the Federal Civil Code (Código Civil Federal), or FCC, which sets forth the general choice of law rules in matters governing persons and families. FCC has been used as a model by most state civil codes; in addition, the FCC applies to the personal and family law issues affecting foreign persons, since this is a matter of federal jurisdiction.
Despite its history of church—state conflict, Mexico remains a predominantly Catholic country in which most citizens adhere to traditional Catholic views regarding the family.1 Indeed, in Mexico the family is almost as revered an institution as the Catholic Church. Not surprisingly, this reverence for the family is reflected in the laws surrounding the status of persons and the family in Mexican law. In a society with a meagre safety net of social welfare services, the Mexican family serves as an alternative, informal social security system. Unfortunately, there is also an element of myth involved in preserving a traditional notion of the Mexican family. During the past several decades, Mexico has faced the same sociological pressures that have led to the breakdown of family structures and values in other societies: rural poverty, the uprooting and migration of people seeking employment, and an increased incidence of divorce.
The law surrounding the status of persons and families in Mexico is governed by the individual civil code applicable in each territory, i.e. in the Federal District or the particular state of the union. As discussed earlier,2 the state civil codes in Mexico are highly uniform, having for the most part adopted verbatim the provisions of the Civil Code for the Federal District of Mexico City. This dependence on the Civil Code for the Federal District has waned, however, and in recent years there have been significant changes in the civil codes of some states that set them apart from the Mexico City model. Thus, for instance, the Civil Codes of Tamaulipas and of Hidalgo departed from the federal code by granting the same legal rights to spouses in a common law marriage as exist in a conventional marriage. Chihuahua modified its Civil Code to confer greater rights to wives. Quintana Roo, which became a state in 1974, adopted a civil code in 1980 that introduced sweeping reforms with regard to civil liability. Despite these departures, the 1932 Civil Code applicable to the Federal District (p.460) and Federal Territories3 has rarely been amended, despite major changes in Mexican society and economy, and it has served as the model for civil codes throughout the Mexican states.4
The 1932 Civil Code for the Federal District remained in force, with very few amendments over the years, until 25 May 2000. On that date, the Legislative Assembly for the Federal District adopted a new Civil Code to be applicable only within the territory of the Federal District.5 This Civil Code, hereinafter referred to as the CCDF, is very similar to the 1932 Civil Code, its principal changes having to do with family law. When the CCDF was transformed into a purely local code, applicable only to matters in the Federal District, the federal Congress adopted an identical version of the 1932 Civil Code as the Federal Civil Code (FCC) applicable to federal matters and to federal territories.6 For this reason, the FCC is applicable as a supplementary law to commercial law matters, since commercial law is exclusively federal in Mexico.7 Since questions of family law and the law of persons are governed by local law, the civil code of the state of residence (or the Federal District) applies to such matters. However, the FCC does apply as a residual code in respect of the status of foreign citizens, in accordance with Article 73, Section XVI, of the Constitution. The FCC also applies to all matters related to the application of international treaties to which Mexico is a party.
The adoption of the ‘new’ CCDF was carried out by an opposition party, the PRD, which won control of the Federal District in the late 1990s, and wished to assert its independence from the PRI's legislative authority; in short, politics, rather than a desire for reasoned reform, compelled the adoption of the new CCDF.8 Most of the changes made to the CCDF appear in the area of family law, and many of these involve changes in terminology without a dramatic change in substance. For that reason, the new CCDF is not likely to have a great effect on state civil codes.
This Chapter focuses on the Federal Civil Code (Código Civil Federal), or FCC, although we will occasionally refer to the rules of the CCDF when these differ from the FCC. In fact, most articles of the CCDF retain the same numbering, and the exact language, of the FCC. As the continuation of the 1932 Civil Code, the FCC is still the model code for private law in Mexico, and most legal treatises on legal doctrines contained in the civil codes are based on this Code.
The Mexican Civil Code, like its counterparts in Latin America, was largely based on the French Civil Code of 1804 (Code Napoleón), a set of rules that represented enlightenment ideals that contrasted with the more conservative private laws that had been applied in the Spanish colonies. Chile and Argentina adopted French-based Civil Codes in 1854 and 1875, respectively, and these codes influenced the content of similar codes adopted in other countries in Central and South America. The first Civil Code of Mexico, modelled on the French Code Napoleon, was adopted in 1870, replaced in 1884, and replaced again in 1932, when the current FCC entered into force. Although Mexico did not directly import the Argentinian version of the civil code, Argentinian legal authorities (especially the writings of Argentinian jurists) have long been consulted for instruction on principles of civil law, and have been cited by Mexican courts, for two reasons: both Codes are based on the French model; and there is great respect in Mexico, as in Latin America generally, for the high quality of Argentinian legal scholarship.
Like its Latin American counterparts, the Mexican Civil Code echoed a European philosophy towards persons and family which was in keeping with the liberal thinking of the day. As often happens in Mexico, however, the foreign model eventually became ‘Mexicanized’, and in the twentieth century Mexico continued to be influenced more by European civil law than by Latin American developments.9 Beginning with the liberal reforms of the last half of the nineteenth century, and continuing through the Mexican Revolution, the European-based principles of family law underwent significant re-examination, as a consequence of the secularization of Mexican law and the need to meet the demands of different social strata of Mexican society. In 1856 the anti-clerical Laws of Reform secularized the institution of marriage, establishing marriage as a civil contract to be registered with the state and rendering the religious ceremony of marriage an act without legal significance. This was the first step towards eventual recognition of divorce, although this did not occur until 1915, when Congress adopted a new Law of Family Relations that recognized divorce for cause, rights of children born out of wedlock, and rights under common law marriages (concubinato).
2. The Law of Persons: Applicable Law10
Article 12 of the Federal Civil Code (FCC) sets forth the following general choice of law rules in matters governing persons and families. As noted below (p.462) in chapter 14, the FCC has been used as a model by most state civil codes; in addition, the FCC applies to the personal and family law issues affecting foreign persons, since this is a matter of federal jurisdiction.11
FCC Article 12 states:
The italicized words were added in 1988 reforms to the CCDF, as discussed in chapter 22 below, Section 2.3. As a result of this change, the Federal Civil Code retains a territorial base for choice of law, while at the same time opening the possibility for recognition of the application of the laws of other jurisdictions, either because of the parties' selection of the aplicable law, or because of choice of law rules aceptable under international law or international treaties.
Mexican laws apply to all persons within the Republic, as well as to acts and events that take place within Mexican territory or under its jurisdiction, and to those persons who submit themselves [or their acts] thereto, unless [Mexican] law provides for the application of a foreign law, or the application of foreign law is otherwise provided by treaties or conventions to which Mexico is a party (emphasis added).
According to Article 13, section II of the FCC, questions of legal capacity, marital status, custody, and financial support are to be determined in accordance with the law of the person's domicile. The first part of this Chapter deals with two related concepts that are fundamental to the law of persons: capacity (capacidad) and the legal status of persons (personalidad jurídica). We then turn to specific topics such as birth, matrimony, the different forms of relationships between parents and children (known as filiación), divorce, and guardianships. Regulation of inheritance and property is discussed in the following Chapter.
2.1. Natural and Artificial Persons (Personas Físicas and Personas Morales)
The FCC distinguishes between natural and artificial persons (personas físicas and personas morales). Persona física refers to an individual or natural person, whereas persona moral refers to an artificial or fictional ‘person’, such as a group of individuals with a particular purpose (associations, partnerships, corporations, etc.).
Personas físicas are defined in the FCC on the basis of their legal capacity (capacidad jurídica) i.e. the ability to be regarded as the subject of a right or the object of a duty. According to FCC Article 22, a person acquires legal capacity at birth and loses legal capacity at death. However, Article 22 also states that a person acquires legal rights—referred to in Mexico as capacidad jurídica de goce, or enjoyment of rights—at the time of conception. Thus, an unborn child cannot enter into a contract, but may be the beneficiary of a contract or of an inheritance.
(p.463) The term persona moral,12 or artificial person, encompasses a wide variety of entities that are enumerated in seven different categories under FCC Article 25:
I. The nation, the Federal District, states, and municipalities;
II. other corporations of a public nature recognized by the law;
III. corporations of a civil or business nature;
IV. trade unions, professional associations, and other entities listed in section XVI of Article 123 of the Federal Constitution;
V. co-operatives or mutual benefit corporations;
VI. associations other than those listed above that pursue political, scientific, artistic, recreational, or other lawful purposes, provided such purposes are recognized by law; and
VII. foreign corporations, pursuant to the terms of Article 2736.13
Mexican law is prone to excessive formality with regard to the power of representation,14 and requires anyone who attempts legal representation of a persona moral to have been granted the power of representation by the governing board or person designated by the rules of the corporation or association, under the exact terms set forth therein. If the formalities of legal representation are not strictly followed, the power of representation is considered invalid.15 Thus, for instance, a Mexican court of law will not permit an officer of a corporation to represent the corporation in acts related to a lawsuit (e.g. answering a complaint) without proof that the person has proper power of attorney. In Mexican litigation involving corporations, lawyers commonly use the strict requirement of proof of representation as a trial tactic, requesting the judge to demand not only a document that evidences the grant of power of (p.464) attorney, but even proof that the person or body that granted the power was itself duly appointed and authorized to do so. Mexican attorneys representing foreign corporations must sometimes ask members of the board of directors of the foreign corporation to prove that they were properly elected and acting within their authority when they granted power of attorney to answer a complaint, before the court will accept the representation. Given the time limits in litigation, this can be particularly vexatious.
It is important to remember that under Mexican law, legal principles established in the civil codes operate as an important body of supplemental law that may apply to artificial persons in the field of commerce or business. Since Mexican commercial law is of a federal nature, should a controversy or doubt arise that is not covered by the specific provisions of the Commercial Code (Código de Comercio) or of the General Law of Business Corporations (Ley General de Sociedades Mercantiles) the law is to be determined in accordance with the provisions of the FCC.16
2.2. Characteristics of Personas Físicas and Personas Morales
2.2.1. Legal Capacity
Legal capacity refers to the legal system's recognition of the capability of natural or artificial persons to acquire rights and duties. (In Mexico, as in most Latin American legal systems, the term used to denote legal capacity in the case of personas morales is ‘personalidad juridica.’) According to FCC Article 22, personas físicas acquire legal capacity at birth. However, FCC Article 22 also makes clear that a person may acquire legal rights as of the date of conception, such as the right of inheritance. Personas morales, such as corporations or civic associations, acquire legal capacity upon registration of the act of incorporation in the Public Registry, as discussed below.
Mexican law distinguishes between, on one hand, the capacity to be regarded as the subject of a right and/or the object of a duty (capacidad de goce), which the individual acquires from the moment of conception and, on the other hand, the capacity to exercise one's rights independently of other persons (capacidad de ejercicio), which is acquired when a person reaches the legal age of adulthood (in Mexico, at eighteen years) and is capable of carrying out legal manifestations of consent.17 Persons who have reached adulthood are assumed to have legal capacity unless a court of law has declared otherwise, due to lack of mental capacity, alcoholism, drug addiction, etc.
Name of an Individual or Corporate Name (Nombre o denominación social) Legal capacity involves the official recognition of the name of a natural or (p.465) artificial person through registration in the civil registry (registro civil) that is maintained within each state and in the Federal District. In the case of individuals, birth certificates registered with the civil registry must show the first, middle, and last names of the person, as well as the father's and mother's names.18 By putting a certificate of birth on record, a person acquires the right to defend the use of his or her legal name, should the name be unlawfully used by another person. The Mexican Supreme Court ruled that this is ‘one of the rights of the legal status of human beings [personalidad humana], which just as other rights of this type, cannot be renounced or disposed of’.19
Personas morales, including corporations, must following specific procedures to acquire names that are recognized under law. As discussed below,20 any association or company wishing to become incorporated in Mexico must first obtain permission from the Secretariat of Foreign Relations (SRE). Such permission establishes a record of the corporation's official name, which is then registered in the charter granted by the notary public or corredor público who records the charter.21 Registration of the corporate name with the SRE is separate from registration of a trademark, and does not automatically provide trade mark protection. (On registration and protection of trade marks, see chapter 21 below.)
Domicile refers to the territorial location of both natural or artificial persons. In a federal system such as Mexico's, domicile serves as the basis for determining what law is applicable to a person for purposes of defining marital status, property rights, etc.
Establishing the place of domicile
According to FCC Article 29, ‘the domicile of natural persons [personas físicas] is the place where they habitually reside and, in the absence thereof, the place of their main centre of business’. According to Article 29, habitual residence exists when a person resides in a place for more than six months. The Supreme Court of Mexico has interpreted Article 29 to contain two key components: the fact of habitual residence, provable by objective evidence; and the intent voluntarily to reside in a particular place.22 FCC Article 30 goes on to define ‘legal domicile’ for individuals as ‘the place (p.466) where the law sets his or her residence for the exercise of his or her rights and the fulfilment of his or her obligations, even though in fact he or she may not be present there’. The Civil Code also establishes special rules of legal domicile for certain categories of individuals.23
Domicile is important in litigation, since it may be used as a basis for a court to assert jurisdiction over a party.24 Domicile is also used as a basis for determining the law applicable to the status and rights of personas físicas. According to FCC Article 1, section II, the law of the place of domicile determines matters such as birthright, legal capacity, marriage, divorce, and inheritence.25
Establishing the domicile of personas morales, such as corporations, is much less straightforward, because of overlapping provisions in various laws.26 According to the first paragraph of FCC Article 33, the domicile of artificial persons, such as corporations, is the place ‘where their administration is established’.27 In matters involving corporations, the provisions of the FCC concerning personas morales give way to the overlapping provisions of the General Law on Business Corporations (Ley General de Sociedades Mercantiles, or LGSM). LGSM Article 6, section VII, provides that the corporate charter (estatutos) must state the place of domicile, that is, either a State of the Republic or the Federal District.28 The Supreme Court of Mexico has held that the domicile established in the corporate charter shall be presumed to be the legal (p.467) domicile, even if the corporation's principal place of business is in a state other than that set forth in the charter.29 The domicile may be changed provided that the rules of the corporation are amended to reflect such modification.30
3. Civil Status (Estado Civil) of Persons
The legal status (personalidad jurídica) of individuals, including their capacity to enjoy rights and fulfil obligations (capacidad de goce), and their capacity to accomplish legal acts on their own behalf (capacidad de ejercicio), is closely tied to certain events and acts that stem from marital status. These events are considered key concepts in Mexican law, and include birth, marriage, divorce, different forms of filiation, and guardianships.31
In the area of civil status, the strong hand of the Catholic Church makes its mark on Mexican law. According to statistics gathered by the Mexican Institute of Statistics (INEGI), in the 1990 census approximately 90 per cent of the Mexicans surveyed professed the Catholic faith as their religion.32 Despite the history of anti-clericalism that has characterized Mexico from the mid-nineteenth century,33 as the following paragraphs show, Mexican laws governing subjects of concern to the Catholic Church (marriage, divorce, abortion, etc.) reflect traditional Catholic values.
As mentioned above, FCC Article 22 provides that legal capacity of persons is acquired at the moment a person is conceived. All persons born in the Federal District must be registered before a judge of the Civil Registry of the place where they were born within six months of their birth (FCC Article 55). Should the child be presented as having been born in wedlock, the civil registry shall record the full names, domiciles, and nationalities of the parents, the names and domiciles of the grandparents, and the names of two witnesses who must appear when the birth certificate is issued (FCC Articles 58 and 59).
The FCC establishes four different types of parental recognition that may be entered on a birth certificate. The first type involves a child born out of wedlock. In such cases, to be recognized as parent, the father must expressly (p.468) request that his name appear on the birth certificate;34 the mother, on the other hand, does not have the right to refuse to recognize the child (FCC Article 60). The second type of recognition applies if the child is the product of adultery; the name of the father may be entered on the certificate, but the name of the mother may not be if she is married and lives with her husband (FCC Article 62). Thirdly, if a child is born to a married women who lives with her husband, ‘in no case, nor at the request of anyone, may the judge of the registry enter [on the birth certificate] as the father anyone else except the husband, unless the husband does not recognize the child as his own and a final judgment of a court of law has been issued declaring this to be so’ (FCC Article 63). Finally, ‘a child born as a result of incest may be recognized. Parents of a child born in this circumstance have the right to have their names entered on the birth certificate, but it shall not be stated thereon that the child is the product of incest’ (FCC Article 64).
According to Mexican law and practice, the birth certificate is the most important document of identification for persons conducting matters with public agencies, and is the main document employers inspect when hiring employees.
Ironically, the legality of abortion, an extremely divisive issue under the law of the United States, was until recently a settled question under Mexican law. Due to the immense influence of the Catholic Church in Mexico, abortion was generally outlawed by the state penal codes as a form of homicide.35 In Catholic doctrine a person's soul is created at the time of conception, and abortion is therefore a mortal sin, tantamount to murder. Mexico is predominantly Catholic, and no alternative religion or atheistic movement has seriously challenged this dogma and attempted to overturn the opprobrium connected with abortion. In Mexico, if abortions take place they do so surreptitiously, to escape the condemnation of society.
The law concerning abortion in Mexico is slowly changing, and being decriminalized in limited instances. For instance, in 2002 the Legislative Assembly of the Federal District adopted a Penal Code for the Federal District36 that, for the first time, contained a specific chapter regarding abortion (CPDF Articles 144 to 148). Article 148 of this Penal Code sanctions abortion following rape or artificial insemination without the consent of the mother if her life is in danger, or when the foetus has congenital abnormalities.
3.2. Marriage and Marital Property
Despite the importance of the religious ceremony of marriage for most Mexicans, it is the civil ceremony of marriage—a formal civil act performed by a judge of the Civil Registry in accordance with strict procedural requirements—that makes (p.469) a marriage legally valid and binding.37(Later in this Chapter we discuss the recognition of common law marriages (concubinato) in Mexico.) Marriages that take place in a foreign country and are binding according to the laws of that country are recognized in Mexico under the conflicts of law principle that ‘the form of legal acts shall be governed by the law of the place in which they are celebrated’.38 Thus, if two Mexican citizens decide to marry while on a visit to Houston, Texas, that marriage will be recognized in Mexico if the marriage is considered valid under the laws of the state of Texas.39
Marital property40 may be either jointly owned (sociedad conyugal) or separately owned (separación de bienes); either before or at the time of entering into marriage, the parties are free to agree upon either arrangement by concluding an agreement (capitulaciones) that sets forth the marital property regime.41 The marital agreement on property (capitulaciones matrimoniales) must be filed with the judge at the time of the ceremony. Most married couples dispense with the filing of this agreement, and it is then understood that marital property is to be jointly owned.42 In such instances, however, property owned by the bride and groom prior to marriage will be considered separately owned.
To enter into an enforceable agreement of joint ownership of property at marriage (sociedad conyugal), recognizing that property owned separately before marriage would become jointly owned upon marriage, the parties must adhere to the formal requirements established by FCC Article 189.43 If the (p.470) parties wish to provide for separate property (separación de bienes) of property acquired after marriage, this may be accomplished by the parties signing capitulaciones to this effect, and including a list of the separate property of eachspouse.44 As already noted, if the bride and groom contract marriage without entering into a contract of capitulaciones, the marital property acquired after marriage shall be jointly owned, but property that was separately owned by either of the parties prior to marriage shall be deemed separate property.
The prenuptial agreement establishing marital property rights may be amended or terminated by joint agreement of the parties, who may convert from joint ownership to separate ownership, or vice versa (FCC Article 186). In addition, the agreement can be terminated by one spouse, provided that termination is based on certain grounds.45 (Property rights after the death of a spouse are discussed in the following Chapter, under the topic of inheritance.)
3.3. Annulment and Divorce
Mexican law provides for annulment of marriage in certain instances set forth in CCDF Articles 235–263, which include cases involving incest, coercion, or existence of a prior marriage that is still valid. Marriage can also be annulled for failure to follow the formal procedures dictated by the CCDF:46
(p.471) For a traditionally Catholic country, Mexico has adopted quite liberal rules governing divorce. This was not always so. The first Civil Codes of Mexico, adopted in 1870 and 1884, failed to include any provision for divorce. Divorce first appeared in the Law of Family Relations of 1915,47 and the CCDF of 1932 included provisions on divorce (Articles 266–291) that remain in force with few changes to this day. The existence of a liberal regime has not translated into a high incidence of divorce, however: the National Institute of Statistics and Demographics (INEGI) calculates that the divorce rate in Mexico was 8.7 per cent in 1970, but actually declined to 6.5 per cent in 1998.48 Mexico continues to be a society in which the importance of marriage and family in a Catholic country underlies a strong societal antipathy to divorce. Of course, these values are less evident in the large population centres of Mexico City and Monterrey, where divorce has become increasingly common.
Divorce in Mexico is governed by Articles 266–291 of the FCC, which has been adopted in most of the thirty-one Mexican States. In 2002, however, the Legislative Assembly for the Federal District made numerous changes to its rules of marriage and divorce, adopting a Civil Code for the Federal District that is separate from the Federal Civil Code.49 These deviations were intended to modernize the civil code provisions, but did not make a fundamental change in divorce law.
Mexican law provides for two types of divorce: divorce by mutual consent, and divorce for cause. Divorce by mutual consent (divorcio voluntario, also called divorcio administrativo) is governed by FCC Article 272; such a divorce may be granted by an administrative judge, or juez de Registro Civil, in the place of domicile. Divorce by mutual consent may be granted if at least one year has lapsed since the marriage took place, and only when the parties have no children, and have decided mutually to submit to an administrative divorce (FCC Articles 266, 267 (section XVII), and 272–276). Divorce for cause (divorcio necesario) is authorized by FCC Article 267, may occur upon the petition of one spouse, and may be based on any one of the twenty different grounds for divorce established in FCC Article 267.50 Both types of divorce require the (p.472) filing of a petition for divorce (demanda de divorcio) before a family law judge (juez de lo familiar) in the jurisdiction in which the married couple resides.51
Divorce dissolves the marital bond, and also results in the separation of jointly owned marital property. Where the parties have entered into a prenuptial agreement, the separation of property must take place before a notary public, in accordance with the provisions of the agreement. Where no such (p.473) agreement exists, the separation of property is overseen by the judge, who will issue a decree declaring the separate property of each spouse, and dividing any communal property acquired during the marriage in an equitable way between the two spouses.
In the divorce decree (sentencia de divorcio), the judge provides for the amount of child support; decides who shall exercise parental authority (patria potestad); and decides who shall have custody of the children (FCC Article283). Mexican law distinguishes between the latter two concepts. Patria potestad (in Latin, patria potestas)52 or parental authority, derives from Roman law and implies ‘[t]he whole group of powers—which also entail duties—conferred upon those who exercise them (parents, grandparents, adoptive parents, as the case may be) for the protection of non-emancipated minors53 with regard to their person and property’.54 The judge normally awards patria postedad to both parents upon divorce, and only in extreme cases, usually based on lifestyle, is one parent deprived of parental authority. On the other hand, custody (called guarda y custodia in most Spanish-speaking countries) refers to the personal care of a minor child or incompetent adult, and it is understood that the ex-spouse who takes on this obligation is entitled to child support from the other ex-spouse.55
Custody is generally understood as a temporary right. Mexican judges usually award custody to the mother, especially in the case of young children, with the father being granted visitation rights or temporary custody for periods of vacation, etc. Once the divorce decree is issued, both parents may have parental authority (patria potestad), but only one may have custody; or one of the parents may lose parental authority as well as custody and the other may only have visitation rights.
In cases of contested divorce, ‘the judge, taking into consideration the circumstances of the case, such as the spouses' capacity to work and their economic situation, shall issue a judgment sentencing the guilty party to payment of alimony [alimentos] to the innocent party’56 (FCC Article 288). In cases of divorce by mutual consent, the woman shall have the right to receive alimony over a period of time equal to the length of the marriage, provided that she lacks sufficient income to support herself and does not remarry or enter into a common law marriage (FCC Article 288). The same conditions apply to the man, should he be unable to work.
(p.474) According to FCC Article 288, if divorce gives rise to damages or losses suffered by the innocent spouse, the guilty spouse shall be held responsible for them ‘as author of the unlawful act (hecho ilícito)’, i.e. as someone liable for a civil wrong that gives rise to damages under the civil code.57 For example, a victim of spousal violence could bring a civil action against the wrongdoer under FCC Article 1910 (CCDF Article 1910) for injuries suffered as a result of the violence.58
The Supreme Court of Mexico has defined filiation as the ‘origin of children with respect to the parents, which brings as a consequence different correlative and reciprocal rights and obligations, giving rise to parental authority (patria potestad)’.59 Paternity and filiation are intimately connected to the reciprocal rights and obligations that exist between spouses and between parents and children, affecting individuals and their property interests.60
The CCDF recognizes four main types of filiation, or parent-child relationship:61
(i) legitimate filiation or matrimonial filiation (filiación matrimonial), the result of a child being born in wedlock;
(ii) illegitimate, or extra-marital filiation (filiación extramatrimonial) refers to cases in which a child is born out of wedlock, and the father—child relationship is recognized, either through voluntary recognition by the father, or by a court ruling;
(iii) legitimation (legitimación) refers to cases in which a couple, after marriage, recognize that they are parents of a child born prior to their marriage; and
(iv) adoption, in which, unlike the first three types of filiation, there is nobiological connection between the parents and the minor child, and a relationship of family kinship is legally granted to the adopting parents and adopted son or daughter as if they were the biological parents.
3.4.1. Legitimate Filiation
The FCC operates under a strong assumption that the offspring of spouses are children born in wedlock. Children born within 180 days of the date of contracting marriage, and children born within the three hundred days following the dissolution of marriage, are presumed to be legitimate children.62 The (p.475) presumption of children being born in wedlock is established in almost absolute terms by the FCC: a father cannot fail to recognize children born in wedlock, with only one exception: where it was physically impossible for the husband to have had intercourse with his wife during the first 120 days of the 300 days preceding the birth (FCC Article 325). If the facts of this exception are not proven, then the father must recognize the child even if he alleges that the mother committed adultery, and despite the fact that the mother affirms that the child is not the husband's.63
The FCC provides for settlement of paternity disputes through compromise or arbitration with regard to financial rights stemming from matrimonial filiation (FCC Article 339).
3.4.2. Establishing the Legitimacy of Children
According to FCC Article 354, ‘[s]ubsequent marriage of the parents makes the children born before celebration [of marriage] considered to be born in wedlock’. The FCC, however, makes establishing the legitimacy of children born out of wedlock contingent not only upon the parents subsequently getting married, but also on the parents expressly recognizing the child or children before getting married or during the marriage,64 with ‘both [parents] recognizing [the child or children] in any case [either] together or separately’ (FCC Article 355). Even though recognition may be given subsequent to the marriage ceremony, the children's rights are recognized to exist as of the date that the marriage is entered into (Article 357), and this right is extended to the descendants of children who pass away before the marriage is formalized (FCC Article 358).65
3.4.3. Filiation of Children Born Out of Wedlock and Proof of Paternity
The FCC recognizes three types of filiation of children born out of wedlock. The first type is maternal filiation, based on the fact of a mother's giving birth to a child, which establishes legal filiation to the mother (FCC Article 360). The second type of filiation of children born out of wedlock involves voluntary acknowledgement of the paternity of a child. The third type of filiation involves a declaration of paternity issued by a court of law.
Voluntary acknowledgement of filiation
The power to acknowledge the paternity of a child is far-reaching under the FCC. For example, parents may acknowledge parenthood of an unborn child or a child who has died and left (p.476) descendants (FCC Article 364). Nonetheless, the effects produced by voluntary acknowledgement of parenthood only apply to the person who acknowledges paternity of the child, and are not extended to the other progenitor (FCC Article 366).66 Voluntary acknowledgement of paternity of a child born out of wedlock must be made by means of one of the forms specifically set out in FCC Article 369.67
If the person who acknowledges paternity of child born out of wedlock is married, he or she may not acknowledge paternity and take a child born outside of marriage into the matrimonial domicile without prior permission from his or her spouse (FCC Article 372). If a married woman gives birth during marriage to a child fathered by someone other than her husband, the biological father is not permitted to acknowledge paternity of the child, unless the husband refuses to recognize paternity and a court order has also been issued declaring that the child is not the husband's (FCC Article 374).
Court-ordered recognition of filiation
The FCC grants to an illegitimate child, or to the descendant of an illegitimate child, the opportunity to prove paternity (that the child is the offspring of the biological father) through an investigation conducted pursuant to FCC Article 382.68 An illegitimate child or his or her descendants can also investigate and attempt to prove maternity, ‘but the investigation will not be permitted when it is designed to attribute maternity (p.477) [of an illegitimate child] to a married woman’.69 This provision is an example of the reverential status granted to the Mexican mother;70 it is plainly calculated to protect married women and reinforce traditional family values.
The FCC provides important rights to illegitimate persons whose parentage is recognized by the biological parent or parents. Upon securing a favourable court order, children born out of wedlock are entitled to bear the first and last name of the father and mother who recognize them as well as to receive child support and to inherit property from their estate (FCC Article 389). Since this provision gave the same status to children born out of wedlock as to those born in wedlock, the CCDF of 1932 was harshly criticized at the time of its adoption. Nevertheless, the Supreme Court has been liberal in recognizing the rights of illegitimate children.71
The CCDF also recognizes the legal effects of another widespread practice in Mexican society, concubinato, commonly known in the United States as common law marriage. Concubinato is recognized not only in the Civil Codes but also in other laws,72 and children of common law marriages have rights that are similar to those that arise under marriage. According to CCDF Article 383, the following children are ‘presumed to be the children of the common law husband (concubinario) and wife (concubina): I. Children born after 180 days from the time the common law marriage began; and II. Children born within 300 days following the day common life ceased between the common law husband and wife’. However, in order for rights under a common law marriage to be recognized, neither spouse may be a party to a valid marriage during the concubinato.
The 2002 Civil Code adopted for the Federal District added chapter XI of Book Five, in which certain rules were added that could be interpreted as furnishing property rights for spouses in a common law marriage. Thus, CCDF Article 291 ter states that ‘the rights and obligations inherent in a legal marriage shall govern a common law marriage, to the extent applicable’. Similarly, CCDF Article 291 quater states that ‘common law marriage establishes alimony and inheritance rights between common law spouses’. These provisions could be interpreted as granting property rights to a common law spouse, although no case-law has yet been generated interpreting them.
(p.478) Finally, the reader should note that children also have certain rights with regard to recognition of filiation. For example, should the child who is the subject of an act of recognition be of adult age, he or she must expressly consent to recognition (FCC Article 375). On the other hand, should the child be a minor, consent must be given by the guardian and, should no guardian have been previously appointed, the court shall appoint one specifically for this purpose (FCC Article 375). If filiation of a minor child was recognized by a guardian, the child may ‘challenge the recognition when he or she reaches legal age’ (FCC Article 376).
Custody of children born out of wedlock
The Civil Code has special provisions concerning the custody of children born out of wedlock. For instance, when parents who do not live together both recognize a child in the same proceeding, an agreement must be reached on which parent shall be granted custody. Should the parents fail to reach such agreement, the judge shall decide who has custody (FCC Article 380). Appellate courts have held that when children are born out of wedlock and the parents later separate, and do not agree on custody, a family court judge shall have the power to award custody according to the best interests of the child.73
If the parents of a child born out of wedlock recognize the child at separate times, custody shall be exercised by the first parent to recognize the child, unless the parents agree on who shall have custody and their agreement is approved by the court (FCC Article 381).
The Mexican law of adoption74 has undergone significant changes in recent years, due to Mexico's adherence to several international conventions that directly or indirectly influence the laws of adoption.75 As a result, in 1998 the Mexican Congress adopted reforms to the Civil Code for the Federal District, adding Article 410-E, to modernize the law governing this subject matter;76 this change has been carried over into CCDF Article 410-E.
Under the FCC, both married and unmarried adults of twenty-five years and older are qualified to adopt in Mexico, provided that the age difference between (p.479) the adoptive parent and the adopted child is at least seventeen years (FCC Articles 390, 391).77
International adoptions (adoptions of Mexican children by foreign citizens) may take place in either of two ways: when the foreign citizen is a Mexican resident (inmigrado), the procedures described later in this Chapter for Mexican adoptions are followed. Otherwise, when a foreign party attempts adoption under the law of his or her home country, regulation of adoption engages rules of international law, including applicable treaty law.78 Such treaties generally provide that the applicable law governing the adoption shall be the law of the legal place of domicile or habitual residence of the adopting party. If an adoption is conducted under the FCC and the adopting party subsequently changes countries, the law of the new domicile shall apply; it would be against the interests of the minor for Mexican law to continue to apply when the life-long relationship between the adopting parent and the adopted child is subject to a different law.
The FCC establishes two types of adoption: simple adoption (adopción simple) and full adoption (adopción plena). Simple adoption produces ties only between the adopting parent and the adopted child (FCC Article 402), and does not create rights and obligations vis-à-vis other members of the family, including biological children. In full adoption, the adopted child is given the same status as a biological son or daughter, and adoption creates legal ties to all members of the family of the adopting parents (FCC Article 410-A). Traditionally, simple adoption was the principal type of adoption recognized by the FCC. As a consequence of Mexico's becoming a signatory to international treaties on adoption, and following implementation of reforms to the FCC in 1998, full adoption was included as another possible type of adoption under Mexican law. These international agreements also helped make it possible to turn simple adoption into full adoption (FCC Article 404).
When an adoption case is heard in Mexico, the presiding judge must obtain the authorization or consent of the following persons and institutions, as circumstances may require (FCC Article 397).79 When a person legally exercises parental authority (patria potestad) over the minor, this person must consent to the adoption. If a guardian (tutor)80 has been appointed by a court, the guardian must give consent. In the absence of either a person exercising patria potestad or a guardian, the person who has had the minor child under his or her care for more than six months and who has treated the child as a son or (p.480) daughter must give consent. Finally, in the absence of all of the above cases, the Office of the Public Prosecutor (Ministerio Público) located in the legal place of domicile of the adopted child must authorize the adoption. If the minor was taken in by a social welfare institution, the institution must also consent to the adoption. Should the minor be older than twelve years of age, the judge may also request the consent of the child (FCC Article 397).
The entenado: a form of de facto adoption
The Civil Code provides for recognition of the rights of persons who have cared for a child since infancy, even if they have no blood relationship or kinship tie to the minor child, in recognition of a widespread practice in Mexican society. As a result of the extreme poverty suffered by large segments of Mexican society, many parents feel compelled to entrust their children to the care and custody of other people. This extreme measure may be taken either because the parents lack the means to support the child, or the mother wishes to conceal from conservative Mexican society the fact of having a child out of wedlock or of having given birth as a single mother. The rights of the carers in such situations (known informally as entenado, the name given to the minor who is under care) have become recognized by law. In recognition of the entenado, the FCC grants rights to a woman who has had a child under her care since infancy, to whom she has even given her name, and whom she has publicly presented as her son or daughter. This amounts to a type of de facto adoption. According to FCC Article 378, in such cases the child ‘shall not be taken away from [the woman], unless she consents to handing him or has over or she was obliged to hand him or her over by final judgment of a court of law’. Oddly enough, FCC Article 378 expressly grants rights to women, but this does not rule out the possibility that a male carer might earn similar rights by analogy.
In this section we outline four types of guardianship of minors that are recognized under Mexican law: tutela, guardia, curador, and patria potestad.
Tutela, best translated as ‘guardianship’, is defined as the protection of a person and of a person's property when that person is incompetent or incapable of caring for himself or herself (such as a minor), and he or she is not subject to the parental authority of someone else (patria potestad). In contemporary Mexico, guardianship is most often undertaken, not by private persons, but rather by public agencies: public defenders, agencies of juvenile advocates, juvenile court judges, guardianship councils, or the public prosecutor's office.81 Thus, the employment of guardianships has shifted from the private realm to become an institutional system used by the state to watch over the interests of the unprotected minors or incompetent adults.82
(p.481) Pursuant to the provisions of the FCC, the exercise of guardianship is subject to the oversight or intervention of a conservator (curador),83 the family court judge and the local council of guardianships (FCC Articles 454, 536). The curador is a legacy of Roman and French law, and is a person designated by the judge to ensure that a guardian is properly caring for the child. In practice, however, the curador is a government employee who is rarely engaged in close supervision of the child.
The FCC distinguishes between three types of guardianships, as follows.
(i) A testamentary guardianship (tutela testmentaria) refers to guardianship of a minor child arising out of a will that expressly specifies that a particular person is to serve as guardian of the children of the deceased (FCC Article 470). It is possible for guardianship to be created by the testator solely for the purpose of administration of the testator's estate on behalf of the incompetent person (Article 473).
(ii) A statutory guardianship (tutela legítima) occurs when a minor is not otherwise left under any type of guardianship (e.g. no guardian was named in a will, or the will is declared invalid). This type of guardianship is created by operation of law. Under the provisions of the FCC, statutory guardianship consists of two types: ‘when there is no one to exercise parental authority nor a testamentary guardian’ and ‘when a guardian must be appointed because of a divorce’ (FCC Article 482). Statutory guardianship may only be exercised by the relatives of the incompetent person, and the FCC creates an order of preference among relatives: top priority is given ‘to siblings, with preference for those [siblings] that are on both sides’ [i.e. not halfbrothers or half-sisters] and in the absence of siblings, any other relative ‘up to and including the fourth degree of kinship’ (FCC Article 483).
(iii) A court-appointed guardianship (tutela dativa). When no guardian has been named pursuant to a will, and no other person is entitled to statutory guardianship, a family court judge may designate the guardian (FCC Articles 495 and 497). Minor children of at least sixteen years of age are entitled to appoint their own guardian, subject to the approval of the person they name and the judge of the family court hearing the matter (FCC Article 497
Comparing guardianship with patria potestas (parental authority) or guarda (custody) In general, the rights and obligations of guardians must be understood in relation to two related institutions: parental authority (patria potestas) and custody (guarda).
(p.482) Guardianship (tutela) is a concept of Roman law in which the care of an incompetent person is entrusted to an adult person of legal age who is not the parent of the minor or incompetent person. Parental authority (patria potestas) is a right that may be asserted only by parents or grandparents in order to care for and represent their children.84 Derived from Roman law, patria potestas constitutes the most comprehensive right that can be exercised over incompetent persons, and is designed precisely to protect the interests of the children.
Guardianship arose under Roman law to deal with situations in which the minor was without parents or grandparents. In contrast to patria potestas, the guardian is not the parent of the incompetent person or minor, but rather is the legal representative and does not necessarily take care of the ward (pupilo).
Custody (guarda) implies a lesser responsibility than guardianship or parental authority. Custody, in Mexican law, simply involves the personal care of the incompetent person or minor, and always implies a temporary status under which the person exercising custody has no legal power of representation on behalf of the incompetent person (minor). A hypothetical example of custody is a father stripped of parental authority (patria potestad) by a judgment of the court, but who for some reason must temporarily take care of his child. Another example is a person not related to the incompetent person either by blood or marriage, but who has been entrusted with the care of the incompetent person or minor. Obligations of the guardian It is the obligation of the guardian to support and raise the minor, to provide the necessary resources for the betterment of the minor, to take inventory of all property and administer the estate of the minor, and to represent him or her in any legal proceedings (FCC Article 537). Even though the guardian may put the minor under the care and custody of a person other than the guardian, the ward must always be under the supervision of the guardian and the above-mentioned obligations must be fulfilled. When the guardian is appointed, the judge and the guardian shall jointly set the amount of money that must be dedicated for the support and education of the minor (see FCC Article 538).
The financial interests of the minor, such as those relating to the sale of properties from the estate transferred to the minor, must be approved by a judge of the family court (FCC Articles 564 and 566). The guardian is precluded from conducting any business with the minor (FCC Article 569), nor can the guardian accept the assignment of any creditors' rights against the ward (FCC Article 572) or make donations in the name of the ward (FCC Article 576).
The guardian must file a detailed annual report of his administration to the judge of the family court in charge of the case (FCC Article 590). Once the guardianship has terminated, either by judicial order or because the minor has reached legal age, the guardian is obliged to return all assets from the guardianship to the judge or to the former minor (FCC Article 608).
(1) In contending that Mexican family law reflects traditional Catholic values, we do not ignore the syncretism that characterizes the Catholic faith as it is practised in Mexico. The farther one recedes from large cities, the more one is exposed to popular Catholic beliefs that have been shaped by, and reflect strong vestiges of, pre-Hispanic religious practices and cultural beliefs. While these beliefs may not be officially endorsed by the Catholic hierarchy, they are nevertheless followed in local communities, and influence behavioural practices generally, including family matters.
(3) D.O. 26 Mar. 1928, which entered into force 1 Oct. 1932.
(6) D.O. 12 May 2000.
(8) In the past, the federal Congress, dominated by the PRI, had sole authority to adopt legislation for the Federal District. When Article 73, Section VI, and Article 122 of the Constitution were amended in 1993 (D.O. 25 Oct. 1993), to permit election of a Legislative Assembly for the Federal District, Congress created a new opportunity for opposition leaders to promote legislation specifically tailored for the Federal District. After much debate, the legislative assembly for the Federal District adopted a ‘new’ Civil Code that is largely based on the 1932 model.
(9) seeL. Pereznieto, ‘La tradition territorialiste en Droit international dans les pays ďAmerique Latine’, in 1985 vol I RECUEIL DES COURS DE LʼACADEMIE DE DROIT INTERNATIONAL (Leiden: 1985) at 275 et seq
(11) Mexican Constitution, Art. 73, Section XVI.
(12) persona moralseePacheco, A., LA PERSONA EN EL DERECHO CIVIL MEXICANO (Mexico: ed. Panorama, 1991) at 46 et seq
(13) On Mexican foreign investment law, see chapter 19 below, section 4. Any association, domestic or foreign, that presents itself as a corporation will be considered a persona moral, even though such an entity may not have been duly incorporated by charter. On the other hand, should a company call itself a corporation but not meet the legal requirements of incorporation, Mexican law provides that all members of the partnership or company are jointly and severally liable. See infra, chapter 19 at text following note 28.
(14) SeePérez Fernández, B., REPRESENTACION, PODER Y MANDATO (Mexico: ed. Porrúa, 1996), at 100–101
(15) See generally Novoa, C., ‘Jurisprudencias emitidas por la Suprema Corte de Justicia sobreel otorgamiento de poderes en el extranjero, de conformidad con el Protocolo sobre uniformidad del Régimen legal de los poderes’, in 1 REVISTA MEXICANA DE DERECHO INTERNACIONAL PRIVADO at 137 et seq. (Oct. 1996); Velasco Sánchez, L., ‘La formalidad de los poderes otorgados en el extranjero’, in 4 REVISTA MEXICANA DE DERECHO INTERNACIONAL PRIVADO at 5 et seq. (Apr. 1998). See also Pereznieto and Silva, supra note 10, at chapter 15.
(16) Article 1; Commercial Code Article 2.
(17) See CCDF Article 24 ‘An adult has the power to dispose freely of his person and of his property, absent limits imposed by law’. See also Domínguez, J.A., DERECHO CIVIL, PARTE GENERAL, PERSONAS, COSAS, NEGOCIO JURÍDICO E INVALIDEZ (Mexico: ed. Porrúa, 1992), at 135 et seq; Amparo en Revisión 613/97; SJF, 9a, T. VII, Jan. 1998, p. 1092.
(18) As in much of Latin America, Mexicans automatically acquire both their father's and mother's last names, with the father's last name appearing first in order. Thus, as an example, if Juan Gómez Sánchez marries Ana López Moreno, and they have a daughter named Maria, she will be Maria Gómez López. If Maria marries Antonio Garcia Robledo, her name will become Maria Gómez López de Garcia. Many Mexicans use the father's last name as their principal surname.
(19) Amparo civil directo 9262/50; SJF, 5a, T. CIX, p. 242.
(21) See generallyPereznieto, Leonel, DERECHO INTERNACIONAL PRIVADO, PARTE GENERAL (Mexico: Oxford University Press, 7th. ed., 2000) at 82 et seqAmparo en revisión
An individual's name or company's name has no effect on any prior right that may have been granted with regard to trade marks or trade names, which involves a separate process, as described below in chapter 21. However, the date of registration of the corporate name can be used as legally admissible evidence of an intellectual property right in any matter regarding such rights.
(22) Competencia civil 86/97; Informe 1987, Parte II, 7a, p. 192.
(23) FCC Article 31 (minors share the domicile of parents or guardians; military personnel have the domicile of the place they are stationed; public servants are domiciled where they perform their duties for more than six months; foreign diplomats are deemed to be domiciled where they lived in Mexico, etc.).
(24) See Article 24, section IV, of the Federal Code of Civil Procedure (Código Federal de Procedimientos Civiles), recognizing jurisdiction in civil cases involving personal liability or marital state on the basis of domicile. See also Article 156, section IV, of the Code of Civil Procedure for the Federal District.
(25) In the case of foreign citizens, FCC Article 12 states that persons present in Mexico shall be governed by the provisions of the Federal Civil Code, unless foreign law or the law of a treaty indicates otherwise. FCC Article 13, section II, makes clear that the place of domicile governs matters of ‘civil status’ (marriage, divorce, etc.) of all persons. Therefore, it is clear that a married couple domiciled in Houston will not be subject to federal law regarding divorce, etc., since the law of their place of domicile, Houston, will take precedence. (A more difficult case arises if a couple is separated, and the spouses have different domiciles.)
The Federal Civil Code applies to the status of foreigners throughout the Republic of Mexico. Strangely, the Civil Code for the Federal District, when separated from the Federal Code in 2000 (see chapter 14 above at text accompanying notes 30–34) amended Articles 12 and 13 to state that the CCDF shall apply to all persons present within the Federal District, without any mention of the exceptions stated in FCC Articles 12 and 13.
(26) The domicile of corporations, and the laws applicable to them, is discussed generally in chapter 19 below. For tax purposes domicile of artificial persons is considered ‘the place where the main business administration is located’. Article 19, section II, Federal Fiscal Code.
(27) FCC Article 33, second paragraph, states that if the principal offices of a corporation are located outside the Federal District, but the corporation conducts business within the Federal District, the Federal District shall be considered the corporation's domicile for the purposes of the transactions performed within the Federal District. See also CCDF Article 33, second paragraph. CCDF Article 33 provides that ‘branch offices that operate in places other than where the home office is based, shall be considered to be domiciled in those places for the fulfilment of obligations incurred by the branch offices themselves’.
(28) Frisch, P. W., SOCIEDAD ANÓNIMA MEXICANA (Mexico: Oxford University Press, 4th ed. 1999) at 159
(29) ‘C.H. Buckley’, S. in C., 8 Aug. 1927, SJF, 5a, T. XXI, p. 355: ‘The domicile of a business corporation is that which is set forth in its corporate charter, without precluding admission of evidence to the contrary, and should the charter say nothing in this regard, the domicile shall be considered to be the place where management or administration of the business of the company is located; however, even though the principal place of business is located in a certain place, the legal domicile shall be the domicile established by the corporate charter’.
(30) LGSM Articles 182 and 190.
(31) seeChavez A., M.F., ‘La familia en la legislación mexicana’, in 23 JURÍDICA (UNIVERSIDAD IBEROAMERICANA) 381 (1994)
(34) According to the appellate courts, ‘it is not enough that on the certificate in question only the name of the parent [progenitor] be recorded, but rather it is necessary that the parent appear at the act of registration’. SJF, 9a, T. V, March 1997, Tesis VII. 1o. C. 10C, p. 809.
(35) Código Penal para el Distrito Federal, Art. 144.
(36) Gaceta Oficial del Distrito Federal, 16 Jul. 2002, as amended
(37) Regarding the formal requirements of a civil marriage, see FCC Articles 97–113. As a throwback to Roman law, the FCC provides for the enforceability of antenuptial gifts (donaciones ante nupciales) under conditions established in FCC Articles 219–231. The FCC also provides for enforceability of written promises to marry (esponsales), but the relevant provisions (FCC Articles 139–145) were abrogated in the 2000 revisions to the CCDF. 25 D.O. May 2000. Nowadays, written esponsales are uncommon, but a ceremony to announce an engagement is still common.
(39) FCC Article 161 states that within 3 months of their return to Mexico, Mexicans married outside the country must register their marriage in the Public Registry of the place in which they become domiciled, in which case the marriage is recognized under Mexican law retroactively, from the date of its celebration; if not registered within 3 months, legal effect will only be given to the marriage from the time of its registration. CCDF Article 161 is more emphatic, requiring the parties to register the marriage within 3 months, and making no mention of later registration.
(41) The Mexican Supreme Court has held that ‘the marriage contract must be entered into under the arrangement of [either] joint ownership or under separation of property’, and ‘the arrangement of ownership of property in marriage is left to the free contracting of the spouses’. Amparo directo 8357/61, SJF, 6a, T. LXXXIV, Cuarta Parte, p. 82.
(42) seeBaqueiro R. E. and Buenrostro B. R., DERECHO DE FAMILIA Y SUCESIONES (Mexico: Ed. Harla, 1989) at 83 et seq
(43) On joint ownership, see FCC Article 206 bis. CCDF Article 189 states:
Marriage agreements in which joint ownership of property is established must contain:
(I.) A detailed list of real property that each spouse brings into the partnership, listing the value and any outstanding liens;
(II.) A list of specific personal property that each spouse brings into the partnership;
(III.) An itemized report of all debts that each spouse has upon entering into marriage, stating whether the [marital] partnership shall be responsible for them or only for those [debts] that are incurred during marriage, whether by both spouses or by either one of them;
(IV.) An express declaration as to whether the marital partnership is to include all assets of each spouse or just part of them, specifying in the second instance which assets are to become jointly owned;
(V.) An explicit declaration as to whether the marital partnership is to include all assets of the spouses or just their products. In either case, the part of the assets or of their product belonging to each spouse shall be clearly determined;
(VI.) A declaration as to whether the product of the work of each spouse shall belong exclusively to the one that performs it, or whether he or she shall share that product with the other spouse and in what proportion [it shall be shared];
(VII.) A definitive declaration as to who shall be the administrator of the partnership, clearly setting forth the powers conferred upon him or her;
(VIII.) A declaration as to whether future assets that may be acquired by the spouses during matrimony belong exclusively to the acquiring party, or whether they should be divided up among them [both spouses] and in what proportion;
(IX.) The rules for liquidation of the marriage partnership.
(44) See CCDF Articles 207–217.
(45) See CCDF Article 188: termination at the request of a spouse if the administrating partner, through dishonesty or wilful negligence, seriously diminishes the joint estate; if the administering partner, without express consent of the spouse, cedes joint property to creditors; if the administering partner files for bankruptcy, or is declared bankrupt; or for other reasons considered justifiable by a competent agency having jurisdiction.
(48) According to statistics of INEGI, the government census bureau, the divorce rate in Mexico was (divorces per 100 marriages) 3.2 in 1971, 4.4 in 1980, 7.2 in 1990, 7.4 in 2000, and 8.6 in 2001: www.inegi.gob.mx/información estadística (site visited Jan. 2004).
(50) FCC Article 267 provides as follows:
[The following] are grounds for divorce:
(I.) Duly proven adultery committed by one of the spouses;
(II.) The wife giving birth, during matrimony, to a child conceived before entering into this contract, and who is declared illegitimate by a judge;
(III.) The husband proposing to prostitute his wife, not only when the husband does so directly on his own but [also] when it is proven that he has received money or any other remuneration for the express purpose of permitting someone else to have intercourse with his wife;
(IV.) One spouse inciting or using violence towards the other to [get her or him] to commit a crime, even though the crime is unrelated to sexual depravity or excess;
(V.) The husband or the wife committing immoral acts for the purpose of corrupting their children, as well as tolerance of corruption;
(VI.) Contracting syphilis, tuberculosis or any other chronic or incurable disease, that may also be contagious and hereditary, and [a spouse] being affected by incurable impotence after entering into marriage;
(VII.) Suffering from incurable mental illness, provided that the spouse has been committed or declared mentally ill by a judge (declaración de interdicto);
(VIII.) Absence from the marital home for more than six months without good reason;
(IX.) Absence from the marital home due to a cause that is sufficient to file for divorce, if the separation continues for more than a year without the spouse that separated [ever] filing for divorce;
(X.) A legal declaration of absence, or a legal declaration of the presumption of death, in [certain] cases of exception it [a legal declaration of the presumption of death] is not needed for the declaration of absence to be admissible;
(XI.) Cruel treatment, threats or serious defamation of one spouse to another; XII. Unjustified refusal of a spouse to fulfil his or her obligations as set forth in Article 164, without it being necessary to first exhaust the remedies [intended to bring about] their fulfilment, as well as non-compliance, without good cause, by either of the spouses, with a final judgment in the case of Article 168;
(XIII.) A slanderous accusation made by one spouse against the other, which is a crime that carries a maximum sentence of more than two years in prison;
(XIV.) One of the spouses committing a crime, other than political crimes, that brings shame upon the persons, for which he or she must serve a prison term greater than two years;
(XV.) Habitual gambling or intoxication or improper and persistent use of enervating drugs, when this [activity] threatens to ruin the family or constitutes continuous reason for marital discord;
(XVI.) A spouse committing an act against someone physically or against their property that would be punishable, when it [the act] involves a stranger, provided that such an act is punishable by law with a prison term greater than one year;
(XVII.) Mutual consent;
(XVIII.) Separation of spouses for more than two years, independently of the original motive of the separation that may be argued by either one of them [the spouses];
(XIX.) One of the spouses committing violent family conduct against the other or towards the children of both or of one of them. For the purposes of this article, family violence is understood in accordance with the terms set forth by Article 323 of this Code;
(XX.) Unjustified non-compliance with decisions of administrative or judicial authorities that have been issued so that the spouse obliged to do so corrects acts of family violence toward the other spouse or the children.
(51) When spouses are separated and living in different jurisdictions, the petition for divorce may be filed in the jurisdiction in which either spouse resides.
(53) The term ‘non-emancipated minor’ refers to persons who are under the age of adulthood (18), or who have been declared by a judge to be legally incompetent due to a mental or physical incapacity.
(54) De Pina Vara, R., DICCIONARIO DE DERECHO (Mexico: Porrúa, 1992)
(55) When custody is awarded to a third party, such as a grandparent, both ex-spouses must provide child support to the third party.
(56) The term alimentos refers to a sum of money deemed by the judge to be necessary for the maintenance and support of the divorced spouse.
(59) SJF, 5a, T. XXV, p. 816.
(61) See generallyElías A.E., PERSONAS Y BIENAS EN EL DERECHO CIVIL MEXICANO (Mexico: Porŕua, 1997) at 21 et seq
(62) CCDF Article 324. Dissolution must result from the death of the husband, an annulment of the marriage contract, or divorce. In the last two instances, the term of 300 is counted from the day on which the spouses actually separated pursuant to the judicial decree.
(63) If a woman remarries before 300 days following the dissolution of a prior marriage (FCC Article 158), and has a child within that period (FCC Article 334), the law considers the husband from the dissolved marriage to be the father of the child. However, if the child is born after 180 days of the second marriage, then the legal presumption is that the child is from the second marriage, even if the birth occurred within 300 days of dissolution of the first marriage. FCC Article 334, Section II.
(65) The Mexican Supreme Court, in a case involving a request of inheritance, has held that birth certificates may not be sufficient, in and of themselves, to prove a child's filiation to his or her parents. It may also be necessary for the moving party to produce a copy of the parents' marriage certificate. Amparo directo 500/95; SJF, 9a, T. II, October 1995, Tesis XI. 2p. 18 C, p. 551.
(66) See also CCDF Article 370: ‘When the father or the mother separately recognize children, he or she may not, at the time of the act of recognition, reveal the name of the person with whom he or she had the child, nor state any circumstances whereby this person could be identified. Words [to this effect] contained in the revelation shall be expunged sua sponte [on the court's initiative], so they will remain absolutely illegible.’ The Supreme Court applied this provision in Valdovinos de Barrero María, 28 October 1930; SJF, 5a, T. XXX, p. 1188.
(67) Any of the following documents is sufficient: birth certificate; a special certificate (acta especial) issued by a judge of the Civil Registry; a public document [official record] issued before a notary public, or an official agent (corredor público); a last will and testament; or evidence of a direct or express confession before a court of law.
(68) See CCDF Article 382:
The investigation of paternity of children born out of wedlock is permitted:
(I.) In cases of abduction, statutory rape, and rape, when the date of the crime is consistent with that of conception;
(II.) When the child has enjoyed the status of being the son or daughter of the alleged father;
(III.) When the child was conceived during the time in which the mother lived under the same roof as the alleged father, as a married couple;
(IV.) When the son has written evidence (principio de prueba) in his favour against the alleged father.
As mentioned in the previous Chapter, in 1932 the CCDF departed from the prior versions of the Civil Code by providing for recognition of children born out of wedlock. The 1932 Code finally recognized the widespread practice in Mexican society, dating back to colonial times, of children being born outside of marriage. Although having children outside of marriage may have been condemned officially by the Catholic Church and by conservative society in general, it was nevertheless common, particularly in rural areas. To alleviate the problems arising from illegitimacy, the Civil Code of 1932 for the first time permitted illegitimate children to use the courts to establish their parentage and related rights.
(69) CCDF Article 385. Despite the prohibition quoted in the text, an investigation may proceed if the alleged maternity can be inferred from a civil or criminal judgment. CCDF Article 386.
(70) The Mexican mother is revered not only as the foundation of a strong family, but the bedrock of society. If one hears that someone ‘no tiene madre’ (does not have a mother), it means that whatever the person has done is beyond the pale.
(71) In 1969, the Supreme Court ruled that although CCDF Articles 352 and 353, which preserve the property rights of children, apply expressly to children born in wedlock, nevertheless ‘they provide equal protection to natural children [i.e., biological or illegitimate children], by virtue of the well known principle of analogous application, where the same legal reason exists, the same provision of the law should exist’. Apéndice 1917–1985, SJF, 7a, T. VI, Cuarta Parte, Tercera Sala, p. 71 (26 June 1969).
(72) See, for example, Article 501, section III of the Federal Labour Law, D.O. 21 Dec. 1995, which recognizes the rights of the common law wife in the case of the death or disability of her common law husband. See also the Social Security Law, D.O. 21 Dec. 1995, Article 130.
(73) Amparo directo 3080/90; Semanario Judicial de la Federación, Octava Época, T. VI SegundaParte-1, p. 200.
(74) Both minors and incompetent adults are treated in the chapter on adoption in the Civil Code. Nonetheless, we refer in this Chapter of the book specifically to minors, since they are the subject of most adoptions.
(75) See the Inter-American Convention on Conflicts of Laws regarding Adoption of Minors, in effect for Mexico as of 21 August 1987; the U.N. Convention on the Rights of Children, in effect for Mexico as of 25 January 1991; and the Hague Convention on the Protection of Minors and Co-operation regarding International Adoption, in effect in Mexico as of 24 October 1994.
See generally Siqueiros, J.L., ‘La convención relativa a la protección de menores y a la coop-eración en materia de adopción internacional’, 23 JURÍDICA (UNIVERSIDAD IBEROAMERICANA) 313 (1994). See also Pereznieto and Silva, supra note 10, at chapter 8.
(76) D.O. 28 May 1998.
(77) In the case of adoption by a married couple, only one of the spouses must be at least 25 years of age, but both must be at least 17 years older than the adopted child. FCC Article 391.
(79) The Supreme Court has ruled that, if proper authorization or consent is not provided, such non-compliance constitutes a violation of the Constitution: ‘In order for an adoption to take place, the parents or guardians or those that have the minor in their care must be heard from, otherwise, Articles 14 and 16 of the Constitution are violated’. SJF, 5a Época, T. LXXIV, p. 1675 (19 Oct. 1942).
(80) The institution of guardian (tutor) is discussed in the next section of this Chapter.
(82) A chapter was added to the FCC on 30 December 1997 for the regulation of abandoned children left in the care of a welfare or charitable institution, which assumes the functions of guardianship of any minor children that it takes in. FCC Articles 492–494.
(84) The Supreme Court has ruled that, in accordance with legislative intent, ‘patria potestas, as a general rule, must be exercised by the two parents jointly, and only as an exception may it be exercised by only one [parent]’. Amparo directo 2627/71; SJF, 7a Época, Tercera Sala, T. LI (Cuarta Parte), p. 59 (15 Mar. 1973).