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.
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.
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.
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.
In the Spanish legal system, being a decentralized autonomous state, in civil matters, there are in fact two different legal frameworks:
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.
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.
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.
In order for a minor to be emancipated by consent, it shall be necessary:
Emancipation by consent shall be formalized, either:
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.
It shall be signed by both the parents or guardian of the minor and the emancipated minor.
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.
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.
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:
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:
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:
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.
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.
In practice, emancipation can be useful:
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.
Both parents must appear at the notary's office with their original and valid identity card. If either of them is a foreign national, it will be necessary to bring their original and valid passport.
It will be necessary that the minor child, but older than 16 years of age, who is to be emancipated, also appears at the notary's office together with his/her parents, in order to know and consent to such emancipation. Of course, said minor must also attend with his or her original and valid ID card.
It is essential to provide the Family Book that proves the relationship between the parents and the child.
