Step 1

What is emancipation?

Emancipation is the legal institution that enables a minor, upon reaching the age of 16, to govern his or her person and property as if he or she were of legal age, but with certain legal limitations.

Step 2

What documentation do I need when I go to the notary to emancipate a child?

In the event that the minor who is intended to be emancipated does not have parents, because they are unknown or deceased. Said minor will be subject to a guardianship regime, therefore, it will be necessary that the guardian appears at the notary's office with his/her original national identity card in force and, in addition, to present the original testimony of the sentence in which he/she is named guardian in order to proceed to formalize the emancipation.

Step 3

How much does it cost to emancipate a child before a notary?

This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.

Step 4

More frequently asked questions

What does the emancipation of a minor consist of?

As is well known, in the Spanish legal system, full capacity to act is acquired upon reaching the age of eighteen, which implies that, as of that moment, any person who is in full use of his or her mental faculties can validly perform any act of civil life or legal business(such as, for example, acquiring a home, borrowing money, constituting a real right of mortgage, etc.). ).

Thus, a sensu contrario, as a general rule, any person who has not reached the age of eighteen, that is to say, who is a minor, will not be able to carry out most legal acts or business on his own, but will need to be represented by third parties, which will normally be his parents, who, being holders of parental authority over this minor, will give their consent, as the case may be, to carry out the acts or business intended on behalf of this minor.

<ejemplo>Por consiguiente, si por ejemplo fallece un abuelo y éste nombró heredero de todos sus bienes a su nieto, siendo éste un menor de edad de 10 años al momento del fallecimiento, esta herencia no podrá ser aceptada directamente por este menor, sino que necesitará que sus padres, como titulares de su patria potestad, acudan a un Notario para, en nombre y representación de ese menor, aceptar la herencia en cuestión.<ejemplo>

Having understood the two most common stages that clearly differentiate the legal capacity of an adult from a minor, it is no less true that in our legal system, there is also an intermediate figure that allows a minor, if he/she meets a series of requirements and circumstances, to acquire a greater capacity to act, which as will be seen will be similar to that of an adult, with certain limits and restrictions, being this figure the so-called emancipation, whose specific characteristics will be explained in the following questions.

Where is emancipation regulated?

In the Spanish legal system, being a decentralized autonomous state, in civil matters, there are in fact two different legal frameworks:

  • First, a common civil law, applicable in principle to the entire territory of the State that does not have its own civil law, which, in this particular case, regulates the figure of emancipation in Articles 314 and following of the Civil Code.
  • Likewise, in certain territories, certain autonomous regions have their own civil law, in which case, these rules will be applicable, as for example in the Catalan case, where Book II of the Catalan Civil Code, Articles 211-7 and following, regulates the concept and characteristics of emancipation in this territorial area.

What will be the consequences of emancipation?

Emancipation is a legal figure by virtue of which, the minor who accesses it will be able to act legally as if he were of legal age, so that, by himself, without the need to be represented or assisted by his parents, guardian or any other person, he will be able to carry out fully valid legal acts and transactions.

However, this extended sphere of action does not extend to any kind of acts or contracts, but, on the contrary, the law, in order to maintain a differentiation between the age of majority and the emancipated minor, establishes that, in order for the emancipated minor to be able to perform a series of acts or businesses that are very transcendental for the life or patrimony of any person, it will be necessary for him to have the assistance of a third person, of legal age, who complements his capacity.

What are the legal ways for a minor to be emancipated?

According to the law, there are two ways for a minor to be emancipated:

Vía 1) En primer lugar, la emancipación se puede alcanzar por consentimiento de las personas que ejercen la potestad parental o tutela del menor.

<ejemplo>Así pues, por ejemplo, si un chico de 17 años se quiere emancipar, lo podrá lograr si sus padres acceden a ello y prestan su autorización y consentimiento a tal emancipación.<ejemplo>

En este caso concreto, a la vista del proceso de formalización, este artículo centrará su atención en esta vía, pues como se verá, este consentimiento se puede prestar mediante una escritura pública, función que ejercen los Notarios, como es el caso del que suscribe.

Track 2) In addition, emancipation can also be achieved by a grant from a Judge by means of a judicial resolution.

  • In this case, the judicial process of emancipation is designed, according to the law, for cases in which there are causes that make it impossible for the minor to live together with his or her parents or guardian, or that seriously hinder the exercise of parental authority or guardianship.
  • In this specific case, the authorization or consent of the parents or guardian will not be required, but the law does establish that they will be given a hearing so that they can express their views on the matter, and a report from the Public Prosecutor's Office will also be necessary.
  • In this specific case, as the granting of the concession is carried out through a contentious judicial procedure, it is recommended that, if interested parties wish to obtain more information on the matter, they should contact a lawyer specializing in the matter directly so that he or she can advise them.

Note: Finally, I would also like to comment that the Catalan civil law establishes that, if the minor over sixteen years of age lives in an economically independent manner with the consent of his/her parents or guardian, he/she will also be considered emancipated, but with the proviso that such consent may be revoked.

What are the requirements for emancipation by consent?

In order for a minor to be emancipated by consent, it shall be necessary:

  • The minor must be at least sixteen years of age.
  • That the parents or guardian of the minor give their consent to the emancipation.
  • That the minor consents to emancipation.
  • In the case of emancipation by consent of the guardianship holder, judicial authorization with a report from the Public Prosecutor's Office will also be required.
See more frequently asked questions

How is emancipation formalized?

Emancipation by consent shall be formalized, either:

  • By means of public deed authorized before a Notary. In this case, the Notary will communicate ex officio the emancipation to the Civil Registry so that it is recorded in it.
  • Or by appearance before the judicial authority in charge of the Civil Registry.

Between the two ways, both very appropriate, I would like to emphasize that, by opting for the Notarial way, emancipation can be expected to be achieved in a faster way, and also the advice of a Notary, that is, of a public official specialized in private law, who will be able to advise the minor and the grantors in the most appropriate way possible.

Who will sign the emancipation deed?

It shall be signed by both the parents or guardian of the minor and the emancipated minor.

Can emancipation be revoked?

Once the emancipation is granted, it is irrevocable, so that it is not possible for the parents or guardian to subsequently try to cancel the emancipation.

Will the emancipation be registered in any registry?

In effect, the emancipation will be recorded in the Civil Registry, taking into account that, until it is registered, the emancipation will not be effective against third parties.

For what acts will the emancipated minor need to supplement capacity?

As mentioned in the preceding questions, the emancipated minor will be able to act legally as if he/she were of legal age, so that he/she will be able to carry out by him/herself a multitude of legal acts or businesses, such as, for example:

  • In the family sphere: to marry, to grant marriage contracts, to form a stable couple, or to exercise parental authority over children without the intervention of their parents.
  • In the field of inheritance: accepting inheritances, granting gifts upon death in public deed or agreeing on inheritance agreements.
  • In the patrimonial sphere: To carry out a multitude of legal transactions, such as opening a bank account and freely dispose of its funds, but with the exceptions that will be indicated below.

Thus, as indicated and as already advanced, there will be a series of acts that the emancipated minor, given their importance, will not be able to perform alone, but will need the complementary capacity of another person. These specific acts for which he/she will need this assistance are:

  • To dispose of real estate, commercial establishments, intellectual and industrial property rights, or other assets of extraordinary value, as well as to encumber them or subrogate a pre-existing encumbrance, unless the encumbrance or subrogation is made to finance the acquisition of the asset.
  • To alienate real rights over the above assets or renounce them, with the exception of redemptions of censuses.
  • To dispose of or encumber securities, shares or equity interests. However, authorization is not required to dispose, at least for the listed price, of shares listed on the stock exchange or to dispose of preemptive subscription rights.
  • Waive credits.
  • To renounce donations, inheritances or legacies; to accept legacies and modal or onerous donations.
  • Donate and borrow or take money on loan or credit, unless it is constituted to finance the acquisition of an asset.
  • Granting leases on real estate for a term exceeding fifteen years.
  • To endorse, provide surety or constitute security rights for other people's obligations.
  • To acquire the condition of partner in companies that do not limit the liability of the persons that form part of them, as well as to incorporate, dissolve, merge or split up such companies.
  • Waive, assent to the claim, withdraw or compromise in matters related to the property or rights indicated in this list.
  • Request digital service providers to cancel digital accounts, without prejudice to the right to request their provisional suspension.
  • Accepting the position of director in a company.

How is the emancipated minor's capacity to act supplemented in these cases?

In the event that the emancipated minor must perform any of the acts indicated in the above list, he/she will need the assistance of one of the following persons:

  • Or by the parents of the emancipated minor.
  • Or by the curator of the emancipated minor.
  • Or by the spouse or cohabitant of legal age, in case the emancipated minor is married or in a stable partnership.

Thus, it will require that the corresponding person or persons, among those indicated, give their assent to the act or business in question in order for it to be fully valid.

What happens if the emancipated minor performs any of these acts without the capacity supplement?

The act carried out by the emancipated minor without the assent must be qualified as voidable, during the period of 4 years, so that, if such annulment is claimed, the same would be without effect and the parties would have to reestablish the benefits in the corresponding terms.

When can emancipation be useful?

In practice, emancipation can be useful:

  • Or for the minor to be able to marry, if that is his or her wish, since civil law does not allow unemancipated minors to marry (unless a judicial dispensation is obtained to that effect).
  • Or in the case of minors who, due to exceptional circumstances(such as elite athletes, artists, creators of digital content, or who have received an inheritance, etc.) have high income or assets that allow them to maintain an independent life from their parents. ) have high income or assets that allow them to maintain a life independent of their parents, and in view of this, they wish to develop such independent life with full freedom to enter into legal acts or transactions, without having to constantly seek the authorization or consent of their parents or guardian.

How long does the emancipation process take?

If the emancipation has been granted by the parents in a public deed, it will be valid from the moment it is signed, although it cannot be opposed against third parties until it has been duly registered in the Civil Registry. The inscription in the Civil Registry takes about one month. And the same notary's office is in charge of managing it.

Related articles

Step 5

Where can I consult the applicable regulations?

Step 6

Make an appointment