LA IMPLANTACIÓN DEL DIVORCIO POR MUTUO ACUERDO ANTE NOTARIO EN ESPAÑA.

Abstract

In recent times it has become clear that the justice system is choked with backlog. The need to break through has favoured a series of de lege ferenda proposals aiming to de-judicialize certain kinds of proceedings, especially proceedings to which the adversarial process does not pertain. Proceedings of this type may be classified as belonging to what is termed «voluntary jurisdiction ». In this sense, political authorities have proposed vesting notaries with the competence to conduct proceedings in uncontested divorces. The solution is one that has already been introduced in other countries, especially in Latin America. Notarial divorce regulations are analyzed to ascertain what the various options are and whether or not notarial divorce can be established in Spanish legislation. The implications that notarial competence has with respect to some issues of substantive law are looked into: the constitutionality of the measure, the possibility of employing it when there are underage or incapacitated children involved (cases that might impinge on the public prosecutor's powers), the consideration of the notary's task as one of mediation in the light of the new mediation regulation and the concurrence of notaries and attorneys in uncontested divorce proceedings. If uncontested divorce via notary were to be introduced, how effective could it be under Spanish law? What benefits would it bring in terms of economizing time and cost of procedure and in terms of the protection of citizens' rights and interests? A final opinion on the matter is offered.