THE NULLITY OF MARRIAGE AND FRAUD MARRIAGES:

I’m going to explain the nullity of marriage procedure according to the Spanish Laws and what has been lately happening in Spain over the past few years with fraud marriages between Spanish citizens and foreigners.

The problems regarding the fake weddings have become very common not only in Spain, but in some others countries members of the EU which are receiving lots of immigration, such as France, Great Britain, Netherlands, etc.

The latest official statistics state that for example in 2004, at least 30.000 marriages were between a Spanish citizen and a foreigner in Spain, being Madrid, Barcelona, Valencia and Alicante the Provinces with more of these weddings.

Through these kind of civil unions foreigners, after paying a sum of money to a Spanish citizen or even in some rare cases to Lawyers, who after charging an amount of 3.000€ approximately, he or she will find the beloved “spouse” to the foreigner and arrange everything in order to set the marriage and get the papers for residency in Spain ready. So the foreigners from outside the EU must think this a real business over here in Spain, such as Prostitution, which is also illegal but it’s being working for more than 100 years.

After explaining some aspects of the problematic generally arisen in Europe I’m now going to clarify some of the elements of the marriage and the causes to declare its nullity through Courts in Spain.

What’s exactly the matrimonial consent? The consent is a basic element which consists of the declaration of will of the spouses made in order to fulfil all the requirements established in the article 4 of the Civil Code (hereinafter CC), being the consent always free from any disturbance or forced.

On the other hand, article 73 of the CC states that the grounds for the nullity of the marriage are: the simulation of consent, other vices regarding the consent such as the error, the constraint and the serious fear.

Thus, to consider the consent as totally free and truthful it’s required by law that the fact of granting this consent must be conscious, free and there must be knowledge on what is being done.

Just after a fraud marriage has occurred, if this has been suspicious for any reason, because of the huge age difference between the spouses, the barrier on languages (one spouse is Spanish and the other Chinese and none of them speak each other’s language at all), etc., then the Spanish authorities such as the Judge of the Civil Registry or the General Prosecution Attorney, start an investigation procedure trying to find if there is any connection with the elements concerning the fraud or simulated marriage.

The two main purposes and interests in getting married with a Spanish citizen are: 1.- Nationality and 2.- Legal residency.

1.- Nationality: Article 22 of the CC establishes that the person married to a Spanish citizen could apply for the Spanish nationality just one year after the wedding took place, if there is not any separation or divorce proceeding filed in Court, or if both spouses still live together and always that the marriage is not being investigated by the Spanish authorities.

2.- Legal residency: According to article 17 of the General Foreigner Act, when the wedding takes place, right after the foreigner obtains automatically the legal residency in Spain, and there is no need to make this big long queue at Alicante’s or Elche’s Foreign Offices.

So there are too many advantages for people from South America, Eastern Europe and Africa in such terms of becoming the husband or wife of a Spanish citizen, of course after paying a minimum amount of 3.000€ , being even 6.000€, wait for one year getting the Spanish Nationality, and right after that disappear.

Next week I’ll explain on of the most interesting subjects in Spanish Civil Law regarding the ways to become the owner of a property after 10, 20 or 30 years, even if the property really belongs to other person. This civil matter is called Usucapión and comes from the Roman Law, so it hasn’t changed since then in some aspects.