International Law and Intimacy

The analysis of Mexican law by itself cannot be complete unless it is ordered within the international law context and from a comparative perspective. It is important to review where Mexico stands in comparison to foreign jurisdictions and within the Americas, including both North and South America. There are different issues to be considered in this section regarding international law and intimacy:

a. Applicable law to transnational/non-Mexican intimacies b. International law applicable to all intimacies

c. The comparative perspective

In the previous sections of this chapter, it has been discussed how Mexican Law recognizes and structures intimacy. Nonetheless, in a world of globalization and multiculturalism, intimacies nowadays involve partners of different nationalities, legal systems and jurisdictions. Thus, the recognition and legalization of an intimacy becomes a matter of private international law with the subsidiary repercussions or international treaties signed by states, i.e. public international law. It should be considered that an intimacy will be affected by the location where it is constituted, by subsequent locations of residency and, if applicable, by the jurisdiction where it is modified or terminated. The nationalities of the members of that intimacy as well as the set of laws that governs their structure of intimacy are foundational elements.

This section will review the issues that have an effect on an intimacy inasmuch as it includes an international component. An intimacy may not only be registered in order to claim its recognition and benefits, but also by obligation.

Especially in cases where one of the parties is a foreign citizen, the responsibility to notify and to register an intimacy may be linked to their legal residency status. The omission of this duty could bring negative consequences to that (foreign) citizen. It is necessary to analyze the applicable law and the legal treatment given to foreign

intimacies in Mexico. The economic sphere of intimacies is particularly important, for it may have an impact on third-party transactions and involve other areas of law.

Furthermore, even if an intimacy has been constituted abroad, partners might desire to modify it or to terminate it while residing in Mexico. The determination of the applicable law and procedural viability of a divorce will also be discussed in the following paragraphs.

III.4.1. International Law and International Intimacies

Mexico has ratified many international instruments that affect or are related to the recognition of intimacies; such as the multilateral “Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards”¹⁷⁸ and bilateral agreements like the “Spain-Mexico Agreement on the Recognition and Execution of Judgments and Arbitral Awards in Civil and Commercial Matters”,¹⁷⁹ among others.

At the end of 2010, Mexico joined the International Commission on Civil Status (ICCS)¹⁸⁰ as well. Some of the provisions ratified in these international commitments have already been incorporated into the Federal Code of Civil Procedures, articles 543-577. In section III.2, the four available structures of intimacy were described and analyzed. These structures, however, are the options to begin an intimacy in Mexico.

An intimacy that has begun abroad has a different behavior in Mexican law.

a. Registration and Validity.

In order to claim the validity of an intimacy that has been celebrated abroad, it must be registered in a Mexican Civil Registry. Nonetheless, the only structure of intimacy that can be harmonized into Mexican law and subsequently registered is matrimony.

The foreign marriage license must be registered in the civil registry that corresponds to the new Mexican domicile of spouses. The FCC sets a relative deadline of three months after the arrival in Mexico.¹⁸¹ If the matrimony is registered in Mexico within this deadline, the validity will be retroactive since the date that matrimony was celebrated. After the three months have passed, spouses may still register their

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178 Montevideo, May 7, 1979.

179 Madrid, April 17, 1989.

180 Mexico joined the ICCS but has not ratified all instruments yet.!

181 Art. 161 FCC!

intimacy but its legal effects will begin on the day of the delayed registration. The FCC does not specify any conditions that the foreign matrimony must meet; it only adds the provisions for the deadline.

At the beginning of this chapter, it was explained how religious matrimonies have no legal effect in Mexico since the introduction of the Law on Civil Matrimony by President Benito Juarez in 1859. Thus, it is ironic how religious matrimonies are recognized in Mexico if they are celebrated abroad, at least since the jurisprudence of June 2, 1960. The SCJN resolved then in the constitutional injunction 5752/59 that matrimonies celebrated abroad – including the religious ones – are recognized by Mexico and have all legal effects.¹⁸² The justification of that decision was that Mexico had international commitments on that matter. Nevertheless, as Jorge A. Silva has pointed out, Mexico had not signed any international conventions about this at that point.¹⁸³ Having said that, the common denominator in the analysis of many sentences by the SCJN over the period of 1917 to 2011 is that the principles of private international law are applicable to this matter; namely locus regit actum¹⁸⁴ and lex patriae.¹⁸⁵ Justice Mariano Azuela, who would later become Chief Justice of the SCJN, elaborated on his thesis of February 14, 1968: “…This is admitted [the recognition of a foreign matrimony] for practical and logical reasons, because it would not be possible that a matrimony were celebrated according to the forms and laws of all countries on earth in order for it to be valid worldwide, or that the condition of spouses were only valid in the country where they got married, or that the matrimony were celebrated in every country. Therefore…it is extraterritorial, because the personal statute of spouses follows them everywhere.”¹⁸⁶ His arguments, if nothing else, were genuine common sense.

Regardless of the country where the matrimony was celebrated and whether it is a religious or civil matrimony, the marriage certificate must be duly registered in

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182 Constitutional Injunction 5752/59. Rosario Marcos Sánchez de Sena. June 2, 1960. Unanimous decision. Lead Justice: José López Lira. Case registration number: 271398.

183 Silva, Jorge A. Los efectos en México del matrimonio celebrado conforme a una ley extranjera.

Revista de Derecho Privado. Year 8, Num. 24. Mexico: UNAM, 1997. p. 80.

184 In Latin, the applicable law is that of the place where the act was celebrated.

185 In Latin, the law of the nationals.

186 Constitutional Injunction 5649/67. Juan Gari Pallares et al. February 14, 1968. Lead Justice:

Mariano Azuela. Case registration number: 269381.!

the country where it was celebrated and duly legalized, either via a consular legalization or with the Apostille,¹⁸⁷ and a sworn translation into Spanish (when applicable) so that it can be registered in Mexico and have legal effects. This is true when a) two Mexican citizens celebrate their matrimony in a foreign country, b) when the spouses are a Mexican and a foreign citizen, or c) when both citizens are non-Mexican. The FCC already constrains the validity of that matrimony according to the date of registration subject to the conditions of Art. 161. The registration of the foreign matrimony is detailed as an administrative procedure, but not as an obligation.

It remains unclear whether spouses are obliged to register their matrimony celebrated abroad if they do not want to claim its legal effects. In any case, the SCJN has stated that spouses are obliged to register at least the patrimonial administration of that matrimony, i.e. the economic sphere is very relevant, and it must be clear whether their matrimony contract has a separate property or community property modality.¹⁸⁸ Justice Ernesto Solís Lopez explained: “…the registration is for the benefit of third parties who establish legal relationships with spouses. This is obvious, for the transcription is a means to make the act public, so that everyone knows and in order to avoid prejudice against those who might be affected by ignoring their civil status…”

This sentence made a distinction between the family or moral effects, and the patrimonial ones. The SCJN considered that the validity in terms of the family law effects was given even without the registration, but the registration of their patrimonial regime was mandatory. Furthermore, foreigners have a constitutional restriction to purchase land along the coastline in Mexico, as set out in Art. 27.I. The SCJN ruled that when the foreigner had a Mexican spouse in a community property regime, this constitutional restriction did not apply because the foreigner did not purchase the land directly but rather it was considered a joint asset.¹⁸⁹ This sentence shows again, how important it is to register the patrimonial modality of that matrimony.

b. Termination: Divorce and annulment.

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187 The Apostille legalization of The Hague Convention of October 5,1961 Abolishing the Requirement of Legalization for Foreign Public Documents. Mexico is a member of this convention.!

188 Constitutional Injunction 9288/67. Evangelina Contreras de Cenizo. September 13, 1968. Lead Justice: Ernesto Solís López. Case registration number: 803670.

189 Constitutional Injunction 206/75. María Guadalupe Terroba Canaliza widow of Bella. June 30, 1975. Unanimous decision. Lead Justice: Efraín Angeles Sentíes. Case registration number: 254577.

So far, it is clear how a foreign intimacy or an intimacy that has begun abroad can be recognized in Mexico. The partners of that intimacy may also choose to terminate it while in Mexico. While the Mexican legal system did not intervene when the intimacy was constituted, it will play an important role when terminating it. The judicial process to discontinue that intimacy, i.e. the divorce procedure is tightly linked to the immigration provisions for foreigners in Mexico. For instance, during the conservative period of Spain, while in transition towards a democracy, the SCJN resolved a very important case regarding a divorce of a Spanish citizen.¹⁹⁰ Spanish Laws, still legacies of the Franco dictatorship, did not offer a divorce as an option to spouses. The case that landed in the SCJN was particularly relevant because on one hand it discussed the possibility of terminating a matrimony celebrated in a country where a divorce was impossible, and on the other hand, the grounds for divorce had occurred in Spanish territory. In this case, the SCJN ruled that while the Spanish citizen had the right to the protection of Mexican laws in this civil matter, the right was generated when she moved to Mexico; thus, the six-month deadline began at that point disregarding the events that had happened in Spanish territory. In contradiction to this sentence, the Court did admit evidence of events that supposedly had taken place beyond the Mexican borders in the divorce case of Mrs. Maria Cristina de Borbón de Patiño,¹⁹¹ who was accused of adultery. Her husband did not have any direct evidence to prove his case, but through declarations and documentation he was able to prove his wife had travelled abroad with her friend and stayed at hotels together while travelling. The SCJN ruled that adultery had taken place (even without conclusive evidence), because it was not “normal” that a woman travelled abroad with another man “without her husband’s authorization.” The Court assumed that the overnight stays at hotels in other countries had been sexual encounters. There is no evidence for a reader to decide whether this sentence was gender-bias, except for the wording itself.

Just as a religious matrimony celebrated abroad is recognized in Mexico, the annulment of a religious marriage has legal effects as well. In the constitutional

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190 Constitutional Injunction 1891/77. Enrique Bernat Suárez. December 1, 1978. Unanimous decision.

Lead Justice: J. Ramón Palacios Vargas. Case registration number: 913801.

191 Constitutional Injunction 7803/58. María Cristina de Borbón de Patiño. 9 de diciembre de 1959.

Mayoría de cuatro votos. Disidente: Gabriel García Rojas. Ponente: Mariano Ramírez Vázquez.

Registro No. 271632.

injunction of 1978¹⁹² the court ruled that the sentence issued by the ecclesiastical tribunal was valid because it was considered res judicata.¹⁹³ The appeal lacked any solid grounds, inasmuch as the sentence had fulfilled the legal requirements of the Code of Civil Procedures. Again, the secular legal system in Mexico recognized the applicability of canonical law. In this case, the emphasis was laid on the procedure formalities of that sentence. Formal requirements become important from the immigration perspective also. Foreign citizens in Mexico must demonstrate that they have legal residency in order to file a divorce. The domicile will determine whether the divorce is admitted; and in addition to other requirements, foreigners must submit evidence of their legal status in Mexico according to the Jurisprudence Report of 1973.¹⁹⁴ However, when the foreign citizen is the defendant, they are not required to submit their residency permit in order for their defense to be valid.¹⁹⁵ This is, of course, independent of the obligations that foreigners have in Mexico in order to reside legally. And, a divorce may also lead to the expiration of a foreigner’s residency permit.

III.4.2. Summary

The case of religious matrimonies, being valid in Mexico when celebrated abroad even when Mexican law does not recognize religious matrimonies, proves the applicability of private and public international law in civil matters in Mexico. While the separation of church and state in Mexico still remains intact, the secular legal system allows for the recognition of religious acts from abroad. Although the recognition of a foreign matrimony is possible, other international forms of intimacy cannot be harmonized into a Mexican structure of intimacy other than matrimony.

Foreign forms of intimacy that may resemble concubinage, a civil pact of solidarity or a cohabitation partnership cannot be registered. Partners may sign into one of these forms when they arrive in Mexico, but their foreign intimacy will have no effects.

They will only have legal effects related to the new structure of intimacy that they

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192 Constitutional Injunction 1891/77. Enrique Bernat Suárez. December 1, 1978. Secretary: Agustín Urdapilleta Trueba. Case registration number: 387712.

193 In Latin, a matter already judged.!

194 Report of 1973, First Part, General Assembly, p. 250. “Legal Requirements that Foreigners must fulfill in order to submit a divorce procedure”. Case registration number: 233169.

195 Constitutional Injunction 118/91. Ruth Adelina Marseh. April 26, 1991. Unanimous decision. Lead Justice: Joaquín Dzib Núñez. Secretary: Jorge Valencia Méndez. Case registration number: 222505.!

form in Mexico. The SCJN cases analyzed underline the fact that intimacies are affected many times by more than one legal system and that Mexican law may apply to foreign civil contracts. This is also a consequence of globalization, neither positive nor negative, simply another global issue that must eventually be considered:

matrimonium in itinere.

III.5. Conclusion

Now that the structures of intimacy have been analyzed, it is easier to understand and to identify the spheres of intimacy in each of them. This closer inspection of the legal recognition of intimacy in Mexico has provided a description of the types of relationships that individuals can constitute. The table of contrasts presented in III.2.5 exhibits the key aspects that each structure of intimacy encompasses. These elements demonstrate that Matrimony, Concubinage, Cohabitation Partnerships and Civil Pacts of Solidarity are much more than a mere contract, because they have subsidiary effects in different areas and they overlap with other legislations beyond the provisions regarding civil unions in the civil code. Emotional issues like the solemnity of a civil act may be very relevant for partners who want to legitimate their intimacy, while the access to legal guardianship may be considered more important by others.

Gender-bias wording has been pointed out in this chapter; it shows that legislators, who are for the most part men, have not reached a level of impartiality that is necessarily in democratic legislative bodies. Although the term of intimacy is generally associated with sexual practice, it has been proved how all four structures treat the sexual matter in a different way, but none of them indicates a sexual obligation. The financial provisions of an intimacy are ever so relevant in a century of capitalism. So, especially with the application of welfare, it has been discussed how the type of civil unions can be a criterion that affects the wellbeing of partners.

Furthermore, the constructive capacity is a component that partners usually do not want to give up. The right to constitute a family, be it a vertical or horizontal one, is inherent to any structure of intimacy. The restrictions on adoption, however, show how choosing the most adequate type of structure is critical.

Another feature in this chapter was the evaluation of court cases that have exposed the struggle between the state level and the federal level in Mexico. The case

of Castañeda v. The Mexican Institute of Social Security underscores the bureaucratic obstacles that a legally constituted same-sex intimacy still has to face in order to claim basic rights. The Motion of Unconstitutionality that tried to revoke same-sex matrimony in Mexico City was – fortunately – unsuccessful. Yet, these examples in III.3 confirm the resistance of conservative groups who are still fighting the recognition of intimacy between same-sex partners. It is appalling that cases must land in the Supreme Court in order to claim basic benefits of an intimacy contract. A comprehensive, more holistic approach must still be applied to subsidiary legislations so that they can actually be effective.

Globalization and contemporary trends of the 21^st century have proved to be closely related to intimacy. Therefore, the review of private and public international law along with its impact on intimacy in Mexico has confirmed that legal systems are not completely independent of each other. Mexico does not exist in autarchy, and the mobility of intimacy and individuals around the world ends up shaping the decisions on the recognition, validity and termination of that very intimacy when they are subject to the jurisdiction of Mexican Law. The SCJN cases discussed in this chapter revealed the international ramifications of intimacy and the problems that partners face nowadays. The differences between the four structures of intimacy that were thoroughly examined include subtle and crucial factors; access is definitely a very important one. Access denotes who is allowed to join a certain structure of intimacy and who is not. In this context, the gender of partners determines whether they may or may not have the right to use the legal protections embodied in a specific form of intimacy. Whether this and other limitations represent a discrimination or not, the subject must be analyzed from a human rights perspective. And this human rights argument cannot be found in the civil code that this chapter has studied in detail, it arises rather from the kernel of law, the constitutional protection of fundamental human rights. This profound debate will be the matter of the following chapter.

IV.1. Introduction

Up until now, this research has studied the question of intimacy in general and the particular legal status of intimacy in the Civil Code. It is now necessary to analyze intimacy from a perspective of the fundamental rights that protect it. Thus, this chapter will review the connection between intimacy and constitutional law, human rights and international treaties from a comparative law approach. The first section of

Up until now, this research has studied the question of intimacy in general and the particular legal status of intimacy in the Civil Code. It is now necessary to analyze intimacy from a perspective of the fundamental rights that protect it. Thus, this chapter will review the connection between intimacy and constitutional law, human rights and international treaties from a comparative law approach. The first section of